IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 Crl.Rev.Pet.No. 86 of 2004(A) ----------------------------- CRA.60/1998 OF ADDL. SESSIONS COURT-II, MAVELIKKARA ST.1211/1997 OF THE COURT OF JUDL.MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------ PADMAKARAN, KADASSERI MANNEL, KANDALLOOR SOUTH, KANDALLOOR P.O. BY ADV. SRI.K.HARILAL RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------- 1. ANANDAN, PULLETHUPADEETTATHIL, KANDALLOOR NORTH, PATTOLI MARKET. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR. R2 BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = Crl.R.P.No.86 of 2004-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of July, 2008. O R D E R 1.The revision petitioner has been convicted for offence punishable under Section 138 of the Negotiable Instruments Act. The concurrent verdicts of the court below rested on the deposition of the complainant as P.W.1 that Ext.P1 cheque was drawn and issued by the accused to him and on presentation, it was dishonoured and the accused failed to pay on intimation of the dishonour. 2.In his statement under Section 313 Crl.P.C., the accused admitted the signature on the cheque as his. He did not deny that the other entries in the cheque, including his name along with the signature, were put by him. During the cross examination of P.W.1, the defence version CRRP 86/2004 -: 2 :- projected was that the complainant was an employee of one Vasudevan with whom the accused had transactions in coir materials and the accused had handed over eight blank cheques to Vasudevan who has abused one of those cheques and handed it over to the complainant and it is that cheque which is used for filing the complaint from which this revision arises. It was also suggested to P.W.1 in cross examination that there were litigations between Vasudevan and the accused. If that were so and if the accused had a definite version that the complaint was filed utilizing the cheque entrusted by him to Vasudevan, the immediate reaction, going by common course of human conduct, was for the accused to have issued a reply denying the alleged transaction, when he admittedly received the notice of dishonour from the complainant through an advocate. But quite curiously, no such reply to that notice was issued. Coupled with this fact, P.W.1 has a believable version that he had funds available with him by way of sale of his land and it was that amount that was given to the accused. The CRRP 86/2004 -: 3 :- materials on record have been considered in their entirety by the courts below and it has been concurrently held that the accused is guilty. I do not find anything wrong in the findings and there is no legal infirmity or jurisdictional error in the findings of the courts below. The evidence has been rightly appreciated. The necessary inferences and presumptions emanating out of the totality of the facts and circumstances conclusively lead to the guilt of the accused as found by the courts below. 3.The learned counsel for the revision petitioner – accused - however, argued that Ext.P1 cheque has been materially altered since accused had only signed the cheque and the entries regarding the drawee and the name of the accused as also the date have been entered without the authority of the accused. There is no shred of material on record to sustain such an argument. This is because, other than the questions put in cross examination of P.W.1 suggesting such a version, such attributes have not been specifically made. CRRP 86/2004 -: 4 :- Nor does the accused have such a case in his statement under 313 Crl.P.C. Equally, it is not a case where there is any material by way of defence evidence where the court could decide in favour of the accused by preponderance of probabilities. Therefore, the contentions fail. The conviction stands. 4.The learned counsel for the revision petitioner, however, pointed out that on the question of sentence, leniency may be taken and the petitioner has already been ordered to pay Rs.20,000/- while granting bail and that the said amount has been deposited. 5.Having regard to the totality of the facts and circumstances, in modification of the sentence imposed by the courts below, it is ordered that: i.The revision is allowed in part. ii.The finding of guilt and the conviction are confirmed. CRRP 86/2004 -: 5 :- iii.The sentence imposed by the courts below on the revision petitioner is vacated. In supersession thereof, the revision petitioner/accused is sentenced: (a)to undergo imprisonment till rising of the court, for a day; and (b)to pay fine of Rs.40,000/-, in default of which, he shall undergo simple imprisonment for a period of one month. Any amount already deposited in terms of the interim orders will be given due credit to against the fine. iv.The fine, if paid or realized, shall be treated as compensation payable to the complainant and shall be released accordingly. The learned Magistrate shall take necessary CRRP 86/2004 -: 6 :- steps for execution of the modified sentence hereby imposed. The revision petitioner shall appear and his sureties shall produce him before the court below on 21-8-2008 to suffer the sentence. Needless to say, the learned Magistrate shall take necessary action against the revision petitioner and his sureties under Section 446 Crl.P.C., if he does not appear as directed above. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/210708