IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 Crl.Rev.Pet.No. 3069 of 2010() ------------------------------------ CRA.483/2008 of III ADDL.SESSIONS COURT, KOLLAM ST.186/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOLLAM. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------- SHAJAHAN..E, S/O.EBRAHIMKUTTY,KUZHIYATHU VEEDU,ANUGRAHA NAGAR,KALLUMTHAZHAM P.O.,KOLLAM. BY ADV. SRI.S.M.ALTHAF RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------- 1. RADHAKRISHNA PILLAI,REP.BY HIS LEGAL HEIR , ANITHAKUMARI,W/O.LATE RADHAKRISHNA PILLAI, ARUN BHAVAN,ALUMOODU PO, MUKHATHALA,KOLLAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ V.K.MOHANAN, J. ---------------------------------------------- Crl.R.P. No. 3069 of 2010 -------------------------------------------- Dated the 15th Day of October 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act has preferred this revision petition as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.5,00,000/- from the complainant on 27.6.2004 and towards the discharge of the said liability, the accused issued a cheque dated 2.12.2004 for an amount of Rs.5,00,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant initially approached the Judicial First Class Magistrate-II, Kollam, wherein cognizance was taken CRL.R.P.3069/2010 -:2:- under Section 138 of the N.I.Act and instituted S.T.No.214/2005. Subsequently, the case was made over to the Judicial First Class Magistrate Court-IV, Kollam where the case was renumbered as STC No.186/2007. During the course of trial, PW1 was examined and Exts.P1 to P7 were marked as documentary evidence. From the side of the defence, DWs 1 and 2 were examined and produced Exts.D1 to D6. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for 3 months and to pay a fine of Rs.5,00,000/-. The default sentence is fixed as simple imprisonment for three CRL.R.P.3069/2010 -:3:- months. It is also ordered that if the fine amount is deposited, the same shall be paid as compensation to the complainant under section 357(1)(b) of Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 7.7.2010 in Crl.A.No.483/2008, the court of III Addl. Sessions Judge, Kollam, dismissed the appeal confirming the conviction of the revision petitioner, but modified the sentence by reducing the imprisonment to simple imprisonment till rising of the court. The sentence to pay fine and the default sentence fixed by the trial court were confirmed. It is the above conviction and sentence challenged in this Crl.R.P. 3. I have heard Srl S.M.Althaf, the learned counsel appearing for the revision petitioner, and also perused the judgments of the trial court as well as the lower appellate court. 4. The learned counsel vehemently argued that the complainant has miserably failed to establish the passing of consideration and the evidence adduced in the present CRL.R.P.3069/2010 -:4:- case would show that there was no such transaction and passing of consideration as claimed by the complainant. In support of the above submission, the learned counsel invited my attention to the deposition of PW1, according to whom, the amount given to the accused on 27.6.2004 was the amount withdrawn from the account of PW1 and her deceased husband. But as per the records, particularly as per Ext.D1, according to the learned counsel, no amount was withdrawn on 26.6.2004 or any other date during that month. According to the learned counsel, both the courts below , based upon surmises and conjectures, came into a conclusion that the admission made by PW1 during her examination that the amount was withdrawn on 26.6.2004, by mistake and according to the learned counsel, the said observation or finding is without any basis and the same was not put to the accused under section 313 Cr.P.C. It is the further submission of the learned counsel that without putting these aspects to the accused under section 313, the same cannot be used against the accused to convict him. It is CRL.R.P.3069/2010 -:5:- the further submission of the learned counsel that the accused had given a proper account as to how the cheque in question reached in the hands of the complainant and to substantiate the same, the accused has also adduced evidence, particularly, by examination of DW2. According to the learned counsel, when DW2 was examined, he had categorically admitted that there was a chitty transaction between the revision petitioner and DW2 and the cheque in question was one among the cheques entrusted with him by the revision petitioner. According to DW2, the cheque in question is the one which he handed over to the original complainant. Thus, according to the learned counsel, the defence has established a probable case and therefore the courts below are not justified in holding that the accused could not make out a probable defence case. 5. I am unable to sustain the arguments advanced by the learned counsel. Going by the judgments of the courts below, and the materials referred therein, it can be seen that the original complainant was one Radhakrishna CRL.R.P.3069/2010 -:6:- Pillai, who is none other than the husband of PW1. At the time of sending the lawyer notice and filing the complaint, the original complainant was alive but subsequently the complaint was prosecuted by PW1 as her husband died during the pendency of the complaint. The trial court as well as the lower appellate court considered the evidence of PW1 and came into a conclusion that the cheque in question was issued by the revision petitioner towards the discharge of a liability due to the original complainant. The main contention advanced by the learned counsel for the revision petitioner is that as PW1 has admitted in her deposition that the amount allegedly given to the revision petitioner on 27.6.2004 was raised by withdrawing the amount from the account of PW1 and her husband but the evidence available on record would not justify the above admission and the records are against those claims. Therefore, according to the learned counsel, there is no passing of consideration and the evidence of PW1 and the claim regarding the borrowal of Rs.5,00,000/- on 27.6.2004 as alleged in the complaint and CRL.R.P.3069/2010 -:7:- stated in the legal notice cannot be accepted. As correctly pointed out by the trial court as well as the appellate court, simply because PW1, who is a widow, when examined has stated that the amount was obtained prior to the transaction i.e. on 27.6.2004 that does not mean that the allegation or the claim of the complainant and PW1 that the accused revision petitioner borrowed a sum of Rs.5,00,000/- on 27.6.2004 is incorrect. It may be true that as per Ext.D1 certified copy of statement of account of the complainant, there may not be any transaction or any withdrawal of the amount on 27.6.2004 or any date during the month of June. But Ext.D1 would show the transaction of Rs.8,00,000/- in the same account prior to 1.6.2004. But right from sending Ext.P4 notice dated 23.12.2004 and the complaint, the specific case of the complainant is that the accused borrowed a sum of Rs.5,00,000/- from the complainant on 27.6.2004 and in discharge of debt, the revision petitioner issued the cheque in question. The revision petitioner has no case that the complainant has no CRL.R.P.3069/2010 -:8:- capacity to pay such an amount. It is also relevant to note that in the appellate court, after considering Ext.P7 written statement in O.S.No.425/2005, which was filed by the revision petitioner in the said suit, that the revision petitioner in that case has no allegation that the cheque was given as a signed blank cheque to DW2 Thampi. In effect, absolutely there is no convincing and acceptable explanation as to how the cheque in question reached in the possession of the complainant. So the contention taken by the accused in the present case has no merit as rightly observed by the trial court as well as the appellate court. The evidence of PW1 supported by the documentary evidence would show that the cheque in question was issued by the accused to discharge his liability and therefore, I find no illegality in the findings arrived on by the trial court as well as the appellate court that the complainant has established all ingredients of section 138 of the N.I.Act. Thus, the findings of guilt arrived on by the trial court as well as the appellate court deserve no interference and consequently, the above CRL.R.P.3069/2010 -:9:- findings of the courts below are approved. In the light of the above facts and circumstances involved in the case, I am of the view that there is no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/-