IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 1907 of 2005() ------------------------------------------- CRA.NO.314/2004 OF ADDL.SESSIONS COURT, KOTTAYAM C.C.NO.1508/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MOBILE, KOTTAYAM, CHANGANACHERRY ------------------------------------------ REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------------------------------------------------------- GEORGE KURUVILA, AGED 41 S/O.M.P.KURUVILA, MARATHINAL HOUSE, KAVALA, CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SRI.VARGHESE BABU RESPONDENT(S)/RESPONDENTS/COMPLAINANT ------------------------------------------------------------------------ 1. C.P.JOJI, S/O.LATE JOSEPH PHILIP, CHANGANKERIL HOUSE, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.JOMY GEORGE R2 BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts P.S. GOPINATHAN, J. ---------------------------------------------------------- Crl.Rev.Pet.No. 1907 of 2005 ---------------------------------------------------------- Dated this the 7th day of December, 2011 ORDER The revision petitioner was found guilty by the Judicial Magistrate of the First Class-II, Kottayam in C.C.No.1508/2001 for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for 6 months. He was further ordered to pay Rs.1,00,000/- as compensation to the first respondent , the defacto complainant. Aggrieved by the above conviction and sentence, he preferred Crl.Appeal.No.314/2004 before the Sessions Judge, Kottayam, who made over the appeal to the Additional Sessions Judge. The Additional Sessions Judge, by the impugned judgment dated 21/3/2005, while confirming the conviction, reduced the substantive sentence to simple imprisonment for one month. Order to pay the compensation was sustained. Assailing legality, correctness and propriety of the above conviction and sentence as modified in appeal,this revision petition was preferred. 2. I have heard Adv.Smt.Renjini Rajendran, learned counsel appearing for the revision petitioner as well as Adv. Sri.Sebstian Thomas, appearing for the first respondent and perused the judgment impugned as well as evidence on record. Crl.Rev.Pet.No. 1907 of 2005 2 2. The case of the first respondent is that a sum of Rs.1,00,000/- was due from the revision petitioner. In discharge of that liability, Ext.P1, Cheque dated 21/9/2001 drawn on Federal Bank, Changanassery Branch was issued. When presented for collection, it was returned for the reason that payment was stopped. Though a lawyer notice demanding discharge of the liability was caused, it was returned by the revision petitioner and that liability was not discharged. 3. The revision petitioner pleaded not guilty before the Trial Court, when the particulars of the offence was explained. So he was sent for trial. On the side of the first respondent, he was examined as PW1 and Ext.P1 to P7 were marked. The revision petitioner took a plea of total denial and advanced a defence that the cheque was issued as a security. He was examined as DW1. Another witness was examined as DW2. During the cross examination of PW1, Ext.D1 was marked. 4. Going by the evidence of PW1, supported by Ext. P1 to P7, I find that the first respondent had succeeded to establish the liability, issuance of cheque, dishonuor of the same for stop payment, demand to discharge liability and the return of the notice. DW1 was examined to bring on record that there was money transaction between the revision petitioner and the first respondent out of which, some amount was due. Regarding that there was settlement talk and Rs.1,00,000/- Crl.Rev.Pet.No. 1907 of 2005 3 was determined as the amount due to the first respondent. That amount was discharged by DW1. Though all other documents were returned, the cheque was not returned. However, he has no case that Ext.P1 is not the cheque issued by the revision petitioner to the first respondent. It is also pertinent to note that according to DW1, the settlement and discharge was in February 2001. Ext.P1 is dated 21/9/2001. Therefore, the story of the discharge deposed by the DW1 is not significant. On the other hand, it is evident that Rs.1,00,000/- for which Ext.P1 was drawn, was due from the revision petitioner to the first respondent. Though the revision petitioner has a case of discharge, there is no supporting document. When the defence is one of discharge, the burden of proof is on the revision petitioner. The story that the petitioner omitted to get back the cheque is not believable. Neither it is sufficient enough to rebut the legal presumptions under Section 118 and 139 in favour of the first respondent. In the above circumstance, the Courts below are right in concluding that Ext.P1 was issued in discharge of the liability. Though, Ext.P1 cheque was returned for the reason that the petitioner had requested to stop the payment, so long as he has no case that there was sufficient amount in his account in the bank to honour Ext.P1, it is to be inferred that dishonour was for want of sufficient funds. No evidence was let in by the Crl.Rev.Pet.No. 1907 of 2005 4 revision petitioner justifying the stopping of payment, even if there was sufficient amount in the account. In the above circumstance, I find that, Ext.P1 was returned for insufficiency of funds. Ext.P3, P4 and P5 would show that a notice demanding discharge as contemplated by Section 138(b) of the Negotiable Instrument Act was caused. The Postman had taken the notice to the revision petitioner. He was absent. So an intimation was affixed in the address on 29/9/2001. On 1/10/2001 also, the Postman made attempt. But the revision petitioner was absent. Therefore the only conclusion, that can be arrived at is that the revision petitioner avoided service of notice. Therefore, there is constructive notice as contemplated under Section 138 (b) of the Negotiable Instruments Act. 5. Admittedly, there is no discharge. The revision petitioner relied upon Ext.D1. PW1 had duely explained that Ext.D1 is relating to the transaction between the revision petitioner and the brother of the first respondent. There is no contra evidence. Therefore, Ext.D1 also would not help the revision petitioner. Such being the evidence on record, I find no error, illegality or impropriety committed by the Courts below in appraising the evidence and arriving at a conclusion of guilt. Conviction under challenge is based on cogent evidence and is unassailable. Crl.Rev.Pet.No. 1907 of 2005 5 6. As regards sentence, I find that the transaction involved in this case is between two friends and is an ordinary money transaction. The revision petitioner is an agriculturist. In the above circumstance, he is entitled to a little leniency in sentence and that a sentence till the rising of the Court with a fine of Rs.1,05,000/- would meet ends of the justice. In the result, this revision petition is partly allowed. While confirming the conviction, the sentence is reduced to imprisonment till the rising of the Court and a fine of Rs.1,05,000/- In default of payment of fine, the revision petitioner shall undergo simple imprisonment for a further period of 6 months. Out of the fine amount, if collected, Rs.1,00,000/- shall be paid to the 1st respondent as compensation. The revision petitioner is granted 3 months time to remit the fine. P.S.GOPINATHAN, JUDGE su