IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 CRL.REV.PET.NO. 2564 OF 2004() ---------------------------------------------- CRA.257/2001 OF SESSIONS COURT, KASARAGOD CC.84/1998 OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ B.M.MOIDEEN KUNHI S/O. PAKRU, THAIVALAPPU, P.O.ALAMPADY, MUTTATHODY VILLAGE, KASARAGOD TALUK. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN RESPONDENT(S): RESPONDENTS/COMPLAINANT ---------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. A.M.ABDULLA S/O. C.A.MOHAMMAD SARANG, KAZILANE THALANGARA P.O., THALANGARA, THALANGARA VILLAGE, KASARAGOD TALUK. ADV. SRI.T.B.SHAJIMON FOR R2 SMT.GOVINDU P.RENUKADEVI FOR R2 BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2564 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of July, 2009 O R D E R -------------- Heard both sides. 2. This revision is in challenge of judgment of learned Sessions Judge, Kasargod in Crl. Appeal No.257 of 2001 confirming conviction of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act but modifying the sentence. Case arose on a private complaint preferred by respondent No.2. He alleged that petitioner borrowed Rs.75,000/- from him and for repayment of that amount issued Exts.P2 and P3, cheques dated 25.11.1997 for Rs.25,000/- and dated 10.12.1997 for Rs.50,000/-. He presented the cheques for encashment but the same were dishonoured for insufficiency of funds. Respondent No.2 served the statutory notice on petitioner intimating dishonour and demanding payment. He neither replied nor repaid the amount. Power of Attorney holder of respondent No.2 gave evidence as P.W.1. Exhibit P1 is the Power of Attorney. Exhibits P4 and P6 are produced to prove dishonour of the cheques for insufficiency of funds. Issue and service of notice are proved by Exts.P7 and P8. There is no challenge before me to the finding of the courts below regrading cause of dishonour CRL. R.P. No.2564 of 2004 -: 2 :- and issue and service of notice. It is contended by learned counsel for petitioner that there is no evidence to prove the alleged execution of the cheques. According to petitioner cheques were stolen from his office. Petitioner gave evidence as D.W.1 and proved Exts.D1 and D2. Exhibit D1 is the copy of the complaint dated 10.12.1997 allegedly given by the petitioner to the Circle Inspector, Kasargod. Exhibit D2 is copy of letter dated 10.12.1997 allegedly given by the petitioner to the drawee bank requesting stoppage of payment. Courts below were not impressed by the evidence of D.W.1 and Exts.D1 and D2 and found in favour of due execution of the cheques. It is contended by learned counsel that the finding is not correct. 3. It is not disputed that cheques are drawn on the account maintained by the petitioner. Counsel contends that signature in the cheques are disputed by the petitioner. I have gone through the evidence of D.W.1, petitioner. He has not stated that cheques did not contain his signature. It is seen from Exts.P4 and P5 that dishonour of the cheques was merely for insufficiency of funds and not on account of any difference in the signature with the specimen signature of the account holder. Therefore that contention of the counsel cannot stand. On the question whether Power of Attorney holder was CRL. R.P. No.2564 of 2004 -: 3 :- competent to give evidence, Power of Attorney of respondent No.2 stated that petitioner borrowed Rs.75,000/- from respondent No.2 and for repayment of that amount he issued the cheques. It is not disputed as seen from the cross-examination of P.W.1 that he had direct knowledge about the transaction and execution of the cheques. There is no cross-examination of P.W.1 in that line. Hence there is no reason to think that P.W.1 was not aware of the transaction or execution of the cheques. 4. I shall refer to Exts.D1 and D2. They are only copies of the complaint and letter stated to have been given by the petitioner to the Circle Inspector and the drawee bank respectively. There is no evidence to show that complaint or letter were actually given to the Circle Inspector and drawee bank respectively. What is produced is only copy of the complaint and letter stated to have been given by the petitioner. It is seen from Exts.P4 and P5 that dishonour of the cheques was not for the reason of payment being stopped. If Exhibit D2 had reached the drawee bank in time, necessarily dishonour would have been for the reason of payment being stopped. It is to be remembered that cheques are dated 25.11.1997 and 10.12.1997 whereas Exts.D1 and D2 are dated 10.12.1997. In these CRL. R.P. No.2564 of 2004 -: 4 :- circumstances courts below did not accept Exts.D1 and D2. 5. So far as evidence of petitioner as D.W.1 is concerned, what he stated is that he had not issued any cheque and he had no transaction with respondent No.2. As per Exts.D1 and D2, one J.C.Thomas is stated to have broke open office of petitioner and taken away valuable securities. In Ext.D1 there is no reference to any cheque being taken by the said J.C.Thomas. What is stated is only that valuable securities are taken away. Even if it is assumed that valuable securities include the cheques in question I stated that there is no evidence to show that the complaint was actually given to the Circle Inspector. In the circumstances I am unable to act upon the evidence of petitioner as D.W.1 and Exts.D1 and D2. There is evidence of P.W.1, Power of Attorney holder regarding the transaction and due execution of the cheques. Further fact to be noted is that in spite of being served with statutory notice petitioner did not reply. In the circumstances courts below are justified in rejecting the evidence of D.W1. Courts below have considered the evidence and concluded that petitioner issued the cheques in favour of respondent No.2 for the discharge of a legally enforceable debt/liability. There is no reason why this Court in revision should interfere with the concurrent finding CRL. R.P. No.2564 of 2004 -: 5 :- which rested on a proper appreciation of the evidence let in by the parties. Hence there is no reason to interfere with the conviction of the petitioner. 6. Learned magistrate sentenced the petitioner to undergo simple imprisonment for eight months. Appellate court modified the sentence as simple imprisonment till rising of the court. Petitioner was directed to pay compensation of Rs.75,000/- (Rupees Seventy five thousand only) and in case of default to undergo simple imprisonment for three months. There is no reason to interfere with the judgment of the appellate court as well. Revision fails. It is dismissed. Petitioner is granted one month from this day to deposit the compensation in the trial court. He shall appear in the trial court on 4.8.2009 to receive he sentence. THOMAS P.JOSEPH, JUDGE. vsv