IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.Rev.Pet.No. 2612 of 2010() --------------------------------------- CRA.777/2007 of II ADDL. SESSIONS COURT, THIRUVANANTHAPURAM CC.70/2006 of JUDICIAL FIRST CLASS MAGISTRATE-IV (PRINCIPAL MUNSIFF), NEYYANTTINKARA. .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- -------------------------------------------------------------------- G.VELAPPAN NAIR, S/O.GANGADHARAN NAIR, GUARRAGE MAZDOOR, A.T.O.OFFICE, KSRTC, KILIMANOOR, RESIDING AT PULLUVILA VEEDU, KAIMAN0M, PAPPANAMCODE. BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT(S)/RESPONDENT/COMPLAINANT :- -------------------------------------------------------------------- 1. G.SIVACHANDRAN NAIR, S/O.GANGADHARAN PILLAI, KULAVARAQTHALAKKAL HOUSE, PALLICHAL, NEMOM. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2612 of 2010 --------------------------------- Dated this the 3rd day of September 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that towards the discharge of a debt due to the complainant, the accused issued Ext.P1 cheque dated 30.5.2005 for an amount of Rs.3,00,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable Crl.R.P.No.2612 of 2010 -: 2 :- u/s.138 of the Negotiable Instruments Act. With the said complaint, the complainant initially approached the Judicial First Class Magistrate-I, Neyyattinkara, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.1037/2005. Thereafter the case was made over to the Judicial First Class Magistrate-IV (Principal Munsiff), Neyyattinkara, where upon the case was re-numbered as C.C.No.70/2006. During the trial of the case, the complainant himself examined as PW1 and another witness PW2. Besides the oral evidence, the complainant has also adduced documentary evidence such as Exts.P1 to P7. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 to D5 were marked. After the consideration of the entire materials and evidence on record, the trial court has found that the complainant has established his case against the revision petitioner and found that he is entitled to presumption u/s.139 of the Negotiable Instruments Act. Crl.R.P.No.2612 of 2010 -: 3 :- It is also the findings of the trial court that the revision petitioner/accused miserably failed to rebut the presumption. Thus, the trial court held that the accused is guilty u/s.138 of the Negotiable Instruments Act and consequent to such finding, the revision petitioner was convicted u/s.138 of the Negotiable Instruments Act and accordingly sentenced him to undergo simple imprisonment for a period of three months and also directed him to pay a compensation of Rs.3,00,000/- to the complainant within 30 days from the date of judgment and the default sentence is fixed as one month simple imprisonment. 3. Challenging the above conviction and sentence, though the revision petitioner had preferred an appeal, by judgment dated 3.6.2010 in Crl.A.No.777/2007, the court of Addl. Sessions Judge-II, Thiruvananthapuram allowed the appeal only in part and thus while confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act, the sentence of imprisonment is modified Crl.R.P.No.2612 of 2010 -: 4 :- and the compensation amount as well as the period of default sentence are enhanced. It is the above conviction and sentence are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. The specific case of the complainant is that, himself and the revision petitioner are friends and were working together in KSRTC and out of that friendship, on the demand of the revision petitioner, he had paid a sum of Rs.3,00,000/- to the revision petitioner and towards the discharge of the said liability, the accused issued the cheque in question which subsequently dishonoured for want of sufficient fund in the account of the revision petitioner. When PW1 was examined, he had deposed in terms of the above allegation and he had also stated that the amount given to the accused was obtained from his brother-in-law who is working in gulf. He had further Crl.R.P.No.2612 of 2010 -: 5 :- stated that he gave this amount out of his friendship, though the son of the revision petitioner failed to pay the loan availed of by the said son on the basis of the suretyship of the complainant and the present transaction has taken place, while the other liability connected with former transaction was outstanding. The trial court as well as the lower appellate court accepted the above evidence of the complainant especially when the complainant has produced Ext.P1 cheque which contained the signature of the accused/revision petitioner. 6. The learned counsel for the revision petitioner vehemently argued that the complainant has miserably failed to establish the case against the revision petitioner, especially the transaction connected with Ext.P1 cheque. The specific contention of the learned counsel for the revision petitioner is that the accused has established that the cheque in question is the one which was forcibly taken from the possession of the revision petitioner and he had Crl.R.P.No.2612 of 2010 -: 6 :- never issued Ext.P1 cheque to the complainant. The evidence and materials on record are not helpful to substantiate the pleadings of the defence. The trial court as well as the appellate court has specifically found that the revision petitioner is miserably failed to rebut the presumption. I find no illegality in the above finding of the courts below. The plea advanced by the revision petitioner regarding the “forcible taking of the Ext.P1 cheque etc.” cannot be believed without a pinch of sault. Even according to the revision petitioner, though the complainant approached the revision petitioner with 'gundas' for forcibly taking the cheque in question, it is his case that he has permitted to take photocopy of the cheque before making any endorsement therein. The defence version regarding as to who handed over the cheque in question to the complainant, absolutely there is no conclusive and reliable evidence. As rightly observed by the lower appellate court, PW1 deposed that when he went to the house of the Crl.R.P.No.2612 of 2010 -: 7 :- accused, he had witnessed the quarrel and he intervened the matter and Ext.P1 cheque in blank was given to the complainant. According to PW1, he is the person who took photocopy of Ext.P1 cheque and handed over the same to the complainant. Whereas PW2 says that it was the accused who took the photocopy of the cheque. Besides those contradictions among the defence witnesses, it has to be noted that, if the case of the defence is proved that the cheque in question was forcibly taken by the complainant, I am unable to find as to why the revision petitioner failed to take any timely action against the alleged criminal act of the complainant and also protecting his interest by giving timely information to the banker not to honour the cheque. In the absence of any such contemporary documents and action especially, when the defence witness themselves are contradict each other regarding the crucial aspect, I find no reason to interfere with the findings arrived on by the trial court as well as the lower appellate court. In the light of Crl.R.P.No.2612 of 2010 -: 8 :- the concurrent findings arrived on by the courts below, the conviction recorded by the courts below against the revision petitioner only to be approved and I do so. 7. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other relevant inputs in this case. 8. The cheque in question is dated 30.5.2005 and as per the records and findings of the courts below which approved by this Court, an amount of Rs.3,00,000/- which is due to the complainant is with the revision petitioner atleast for the last 5 years. In this case, it is also relevant to note that the trial court has imposed sentence of 3 months simple imprisonment, but the appellate court has reduced the same to one day simple imprisonment. It is true that Crl.R.P.No.2612 of 2010 -: 9 :- while fixing the compensation amount the appellate court has enhanced and fixed the amount as Rs.3,05,000/-. But considering the facts mentioned above, according to me, the amount fixed by the appellate court is not sufficient, and when this Court is inclined to grant 3 months time to pay the compensation amount, and the amount requires enhancement. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the N.I.Act. Accordingly while maintaining the sentence of imprisonment as revised and refixed by the appellate court, the revision petitioner is directed to pay a sum of Rs.3,30,000/- as compensation to the complainant u/s.357(3) within three months from today. In case any failure in paying the amount the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 3rd December, 2010 to receive the Crl.R.P.No.2612 of 2010 -: 10 :- sentence of imprisonment and to pay the compensation amount, as fixed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in payment of compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. The coercive steps, if any, pending against the revision petitioner shall be deferred till 3.12.2010. Criminal Revision Petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt