IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Crl.Rev.Pet.No. 87 of 2008() ---------------------------- CRA.144/2007 of PRINCIPAL SESSIONS COURT, ERNAKULAM CC.2056/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER: APPELLANT/ACCUSED IN C.C.NO.2056/2001 ------------------------------------------------------- JOHNY THOMAS, AGED 46, S/O.EYO THOMAS, PATTUPURACKAL HOUSE, ETTUKATTU TEMPLE ROAD, ELAMAKKARA, ERNAKULAM DISTRICT. BY ADV. SRI.SHAJI CHIRAYATH RESPONDENTS: RESPONDENTS/COMPLAINANT IN C.C.NO.2056/01 & STATE -------------------------------------------------------------- 1. T.R.THOMAS, THOTTIYIL HOUSE, AZAD ROAD, ERNAKULAM DISTRICT, PIN - 682 017. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.87 of 2008 ---------------------------------------- Dated this the 15th day of January 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The petitioner now faces a sentence of imprisonment till rising of court and there is a direction to pay an amount of Rs.95,000/- as compensation and in default to undergo S.I for a period of one month. 2. The cheque is for an amount of Rs.70,000/-. It bears the date 02/08/2001. The signature in the cheque is admitted. The courts below noted that the petitioner had not advanced any constructive case in defence about the circumstances under which the cheque was issued. Notice of demand though duly despatched was returned unclaimed. The petitioner examined DWs 1 and 2. 3. The courts below did observe that the purpose of examination of DWs 1 and 2 is obscure and has not been made clear. The courts below in these circumstances came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. Crl.R.P.No.87/08 2 4. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner assails the impugned judgments on various grounds. First of all, it is contended that the cheque was not issued for the due discharge of any legally enforcible debt/liability. At the bar, the learned counsel for the petitioner submits that the petitioner's case really is that he, along with the brother of the complainant, is running a financial establishment by name Thottiyil Finance. The complainant had invested an amount of Rs.1,20,000/- in such finance company. The entire liability of the complainant had been discharged. But the complainant had stealthily taken away the blank signed cheque of the petitioner from the premises of such Thottiyil Finance Company. This, in short, is the contention that the petitioner's counsel wants to advance before the revisional court. 5. Significantly such a contention is not seen specifically raised before the courts below. At the stage of 313 examination, the specific contention raised was that the entire amount due to the complainant had been paid and discharged. There is absolutely no piece of evidence or conduct to substantiate the present contention raised that the cheque was stealthily removed by the complainant Crl.R.P.No.87/08 3 from the premises of the Thottiyil Finance Company. Less said about that different version advanced at the revisional stage, the better. 6. The learned counsel for the petitioner raises a further fresh contention before this court that there has been no presentation of the cheque for encashment in the bank of the complainant. It is the case of the complainant that the cheque was presented for collection at his bank, People's Urban Co-operative Bank, Kathrikkadavu; but nothing has been produced to show that the cheque was entrusted to the said Bank, it is contended. To me, it appears that it is really irrelevant to ascertain the details of the bank where the cheque was presented for collection by the complainant. The crucial question is that the dishonour of the cheque of the accused by the bank - Ext.P2 memo of dishonour issued by the petitioners bank - Nedungadi Bank Limited, clearly shows that the cheque was dishonoured on the ground of insufficiency of funds. Ext.P2 further shows that the dishonour memo was issued to People's Urban Co-operative Bank, Kathrikkadavu which is the bank of the complainant where the complainant claims to have presented his cheque for collection/encashment. I find absolutely nothing in this contention urged which can help the petitioner/accused to claim absolution from liability. No other contentions are raised on merits. Crl.R.P.No.87/08 4 7. The learned counsel for the petitioner finally prays that the petitioner may be granted some further time to raise the amount and avoid the default sentence. The cheque bears the date 02/08/2001. The complainant has, by now, been compelled to fight two rounds of unnecessary legal battle and to wait from 2/8/2001 for the redressal of his grievances. I find no merit in the prayer for any long further extension of time to make the payment. However, I am satisfied that a short breathing time can be granted to the petitioner to raise and pay the amount and thus avoid the default sentence. 8. In the result this revision petition is dismissed but with the observation/direction that the petitioner shall have time till 29/02/2008 to make the payment. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/03/2008 to serve the modified sentence hereby imposed. The impugned sentence shall not be executed till 29/02/2008. Needless to say, if any amounts have already been deposited, credit shall be given to such amounts deposited before the learned Magistrate. (R.BASANT, JUDGE) jsr Crl.R.P.No.87/08 5 Crl.R.P.No.87/08 6 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006