IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1287 of 2007() ------------------------------ CRA.22/2004 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD CC.459/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------- BASHEER, S/O.ALI, RESIDING AT POOKKARATHOTTAM, OLAVAKKODE POST, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): COMPLAINANT: ------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.HAMEED, S/O.ALAVI, RESIDING AT NAZAR MANZIL, PUMP ENGINE ROAD, OLAVAKKODE, PALAKKAD. ADV. SRI.RAJESH SIVARAMANKUTTY FOR R2 PUBLIC PROSECUTOR MR.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ====================== Crl.R.P. No.1287 of 2007 ====================== Dated this the 1st day of December, 2009. ORDER Revision petitioner was convicted by the Judicial Magistrate of the Firt Class, Palakkad in CC.459/2002 on his file for offence under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment till rising of the court and to pay Rs.50,000/- as compensation to the 2nd respondent who was the complainant before the trial court. In Criminal Appeal No. 22/2004, the conviction and the sentence were confirmed. Assailing the legality, correctness and propriety of the above conviction and sentence, as confirmed in appeal, this revision petition was filed. 2. The 2nd respondent, who was examined as PW1, had succeeded to establish that the revision petitioner borrowed a sum of Rs.50,000/- from PW1 and in discharge Crl.R.P. No.1287/ 2007 2 of the liability, Exts.P1 and P2 cheques dated 5.2.2002 & 18.02.2002 for Rs.2,5000/- each were issued and that when sent for collection, the cheques were returned dishonoured for the reason “funds insufficient” as evidenced by Ext.P3 and P5 memos. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P6 was issued. Despite the acknowledgment of notice as evidenced by Ext.P7, the liability was not discharged. 3. The revision petitioner took up a defence that only Rs.15,000/- was borrowed and in return Rs. 24,100/- was paid and the cheques in dispute were issued blank as security. Except Ext.D1 no other evidence was let in support of the defence plea. Ext.D1 would mention about some amounts. No head or tail can be made out of Ext.D1. There is nothing to show that the amount mentioned in Ext.D1 related to the liability in dispute. Adding to that, Ext.D1 contains dates in the year 2000. Evidently Exts. P1 and P2 are of the year 2002. The Crl.R.P. No.1287/ 2007 3 revision petitioner did not care to adduce any evidence to the effect that the amounts mentioned in Exts. D1 are relating to the amount covered by Ext.P1 and P2. It is in the above circumstance the courts below rejected the plea of discharge. Though it was contended that only Rs.15,000/- was borrowed, to substantiate the same no evidence was let in. Such being the materials on record the courts below were justified in relying upon the uncontraverted evidence of PW1 supported by Ext.P1 and P2 and the presumptions under Section 118 and 139 of Negotiable Instruments Act that the cheques were drawn for valuable consideration and issued in discharge of the liability. Ext.D1 would not rebut the presumption in favour of PW1. It is also pertinent to note that after receiving the notice demanding discharge of the liability the revision petitioner remained silent. In the event the defence suggested in cross examination of PW1 is correct, the revision petitioner would have retorted to the notice demanding discharge of the liability. The silence of the Crl.R.P. No.1287/ 2007 4 revision petitioner after acknowledging notice demanding discharge of the liability persuades me to arrive at an inference against the revision petitioner. From the materials on record, I am unable to find that the courts below had committed any error, impropriety or illegality in appreciating the evidence of PW1. I find that the conviction under challenge is not liable to be interfered in revision. Regarding the sentence, the courts below were very lenient. The sentence also requires no interference. In the result, the revision petition is devoid of merits. Therefore, it is dismissed. The revision petitioner is granted 4 months time to remit the compensation. Till then, the bail bond executed by him shall be remain in force. The amount, if any, deposited before the trial court shall be given credit to. P.S.GOPINATHAN, JUDGE. mns Crl.R.P. No.1287/ 2007 5