IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 Crl.Rev.Pet.No. 432 of 2010() ----------------------------- CRA.1136/2006 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.700/2005 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-IV NEYYATTINKARA. .................... REVN. PETITIONER(S): ACCUSED -------------------------------------------------- B.SURENDRAN,AGED 53 YEARS, S/O.BHASKARAN,ARAPPURA KAVILVILA VEEDU, VENPAKAL DESAM,ATHIYANNOOR VILLAGE. BY ADV. SRI.D.ROBINSON RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------- 1. K.KARUNAKARAN,S/O.KESAVAN, K.S.NIVAS, KAVILVILA, VENPAKAL DESOM, ATHIYANNOOR VILLAGE, VENPAKAL P.O. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.NAGARAJ NARAYANAN, SRI.SAIJO HASSAN, SRI.RAJAN VELLOTH, SRI.RAFEEK. V.K., SRI.BENOJ C AUGUSTIN, SRI.PRATHAP PILLAI . R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.432 of 2010 ------------------------------- Dated this the 8th day of November, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of 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 the liability due to the complainant, the accused issued a cheque dated 18.1.2005 for a sum of Rs.1,25,000/-, 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 u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant initially approached the Judl. First Class Magistrate Court-I, Neyyattinkara, by filing a formal complaint, upon which cognizance was taken u/s.138 of 2 Crl. R.P.No.432 of 2010 Negotiable Instruments Act and instituted S.T.No.170/05 and subsequently the case was transferred to the Court of Judicial First Class Magistrate-IV (Principal Munsiff)-Neyyattinkara, wherein the case is renumbered as C.C.No.700/05. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P9 were marked. No evidence either oral or documentary adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/ accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/ revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 1 month and also directed the revision petitioner to pay a sum of Rs.1,25,000/- to 3 Crl. R.P.No.432 of 2010 the complainant as compensation u/s.357(3) of Cr.P.C., within 30 days from the date of judgment, failing which the revision petitioner was directed to undergo simple imprisonment for 15 days. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 6.11.2009 in Crl.A.1136/06, the Court of Addl. Sessions Judge-I, Trivandrum, allowed the appeal only in part and while confirming the conviction, the sentence is modified and directed the revision petitioner to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.1,25,000/- to the complainant and the default sentence is fixed as one month simple imprisonment. It is the above conviction and sentence challenged in this revision petition. 4. I have heard Adv.Sri.D.Robinson, the learned counsel appearing for the revision petitioner and Adv.Sri.Nagaraj Narayanan, the learned counsel for the 1st respondent and I have also carefully perused the judgments of the courts below. 4 Crl. R.P.No.432 of 2010 5. The main contention raised by the learned counsel for the revision petitioner is that though the trial court has allowed his petition u/s.311 of Cr.P.C., the witness was not examined and thereby shut down the defence evidence, which resulted in miscarriage of justice. According to the learned counsel for the revision petitioner the cheque in question was given as a security to the complainant, connected with a property transaction, when the revision petitioner received a sum of Rs.25,000/- being the earnest money for the sale of property which belonged to the revision petitioner and his wife. According to the learned counsel, in order to establish the above transaction he had moved the trial court by filing a proper petition and the same was though allowed by the trial court, the witness was not examined inspite of the fact that he had deposited a sum of Rs.400/- being the cost ordered by the court below. According to the learned counsel, in the petition itself it was prayed that a summons be issued to the witness cited by the defence. But inspite of that prayer, the court below directed 5 Crl. R.P.No.432 of 2010 him to produce the witness. At present, the case of the complainant is that the witness who sought to be summoned and examined is a police officer working as Asst. Commissioner and therefore it was not easy for him to produce by himself and therefore he sought the assistance of the court by filing the petition. However, according to the learned counsel though the prayer was allowed and witness was not examined and thereby the revision petitioner had sustain irreparable injury and hardship, which resulted in miscarriage of justice. On the other hand, the counsel for the revision petitioner submitted that the petitioner is not entitled to get any relief, since he was protracting the proceedings in the court below and he miserably failed to produce the witness inspite of the fact that he was directed to produce the witness. 6. I have carefully considered the contentions advanced by the learned counsels of both sides and I have also perused the materials made available to me. 7. The specific case of the complainant is that the accused 6 Crl. R.P.No.432 of 2010 borrowed a sum of Rs.1,25,000/- and towards the discharge of the said liability, the accused issued a cheque in question, which when presented for encashment dishonoured as there was not sufficient fund in the account maintained by the accused. The trial court as well as the appellate court accepted the contentions of the complainant and found that the accused has committed the offence punishable u/s.138 of Negotiable Instruments Act. It is the above concurrent findings of the court below sought to be challenged in this revision petition. It is in support of the above challenge, the learned counsel for the revision petitioner submitted that the court below denied the opportunity of the revision petitioner to examine his witness and in support of the above submission, the learned counsel brought to my notice a decision reported in T.Nagappa Vs. Y.R.Muralidhar [AIR 2008 Supreme Court 2010]. 8. At this juncture it is pertinent to note that, the evidence of the complainant was closed on 24.3.2006 and the case was posted for recording 313 statement of the accused on 20.5.2006 7 Crl. R.P.No.432 of 2010 and subsequently the case was adjourned to 19.6.2006 for defence evidence. On 20.7.2006 though the complainant as well as the accused were present, no 'witness schedule' for the defence was filed and hence the defence evidence was closed on 20.7.2006 and the case was adjourned to 28.7.2006 and then to 30.8.2006. It was on 30.8.2006, the revision petitioner moved an application u/s.311 of Cr.P.C., which was allowed by a separate order dated 30.8.2006. In the above order, the trial court has specifically directed the revision petitioner/accused to produce the witness and also observed that summons could have been applied for. After issuing the above order the trial court adjourned the case to 13.9.2006. On 13.9.2006, the court has recorded that the accused present but no witness present and accordingly the defence evidence was closed. Finally the case was disposed of by judgment dated 31.10.2006. The present case of the revision petitioner is that he could not produce the witness and he was not expected to produce the witness, because the prayer in the petition was to summon the 8 Crl. R.P.No.432 of 2010 witness by the court. But the above contention can not be accepted at this stage. Though there was an order dated 30.8.2006, directing the revision petitioner to produce the witness, no step was taken at the appropriate time. 9. Going by the case of the revision petitioner it appears to me that by the non-examination of the witness sought to be examined no much prejudice is caused to the revision petitioner, especially in the light of the defence set up by the accused. Regarding the property transaction, there is no agreement or atleast a receipt or acknowledgment regarding the issuance of the cheque or the acceptance of the earnest money. If actually there was such an agreement and payment of the earnest money, it was for the purchaser to insist for a written agreement or atleast to demand for the acknowledgment of the receipt of the amount. Normally, the seller is on the safer side in the absence of any document, even if he receives money. Therefore the explanation offered can not be swallowed without a pinch of salt. Even according to the revision petitioner, the 9 Crl. R.P.No.432 of 2010 alleged agreement was on 23.6.2004. Ext.P6 notice was issued by the complainant on 31.1.2005. Allegedly Ext.P7 notice from the side of the revision petitioner was issued on 27.1.2005. Regarding the sale or execution of the documents etc., there is no evidence and in the absence of any evidence regarding those aspects there is no explanation as to how and why Ext.P7 notice was issued on 27.1.2005. In para 8 of the of the decision of the Apex Court in the decision cited supra, the apex Court has also observed that, “ But ordinarily an accused should be allowed to approach the Court for obtaining its assistance with regard to the summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There can not be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.” In the nature of the contentions raised in this revision petition and especially in the light of the above decision, I am of the view that non- examination of the witnesses cited by the accused is not at all fatal or any prejudice is caused to the revision petitioner, 10 Crl. R.P.No.432 of 2010 especially when the revision petitioner miserably failed to take appropriate steps at appropriate time to get examined the witnesses inspite of the fact that the court has allowed his prayer. Therefore it can be safely concluded that the intention of the accused was to protract the matter. In the light of the above facts and circumstances involved in the case and in view of the above discussion, I find no reason to interfere with the concurrent findings of the court below. 10. Regarding the sentence, it appears to me that though the trial court has imposed a sentence of one month simple imprisonment, the appellate court has reduced the same to one day simple imprisonment ie., till the rising of the court, so no interference is called for, with respect to the sentence also. Both the courts below directed the revision petitioner to pay a compensation of Rs.1,25,000/- to the complainant u/s.357(3) of Cr.P.C. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of 11 Crl. R.P.No.432 of 2010 Negotiable Instruments Act as recorded by the courts below. Accordingly, the revision petitioner is directed to pay the amount within 2 months from today and it is made clear that the default sentence ordered by the court below will be attracted only if there is any default on the part of the revision petitioner in paying the compensation within the time limit fixed by this court. It is also made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate. Accordingly, the revision petitioner is directed to appear before the trial court on or before 10.1.2011, to pay the compensation amount as ordered by courts below and approved by this court. In case, any failure on the part of the revision petitioner in paying the 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 execution of warrant if any, pending against the revision petitioner shall be 12 Crl. R.P.No.432 of 2010 deferred till 10.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/