IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.Rev.Pet.No. 341 of 2010 ----------------------------------- (CRA.463/2008 of SESSIONS COURT, KOZHIKODE IN ST.1537/2006 of J.F.C.M.COURT-VI (MARAD CASES), KOZHIKODE) .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- R.MAHESWARI, W/O.K.P.REGUNATH, BABU NIVAS, MELETHODI, BEHIND URBAN BANK, MEENCHANTHA JUNCTION, CALICUT-18. BY ADV. SRI.AVM.SALAHUDDEEN RESPONDENTS/ COMPLAINANTS/COMPLAINANTS: ------------------------------------------------------------------------ 1. DAMODARA NAIK V., S/O.L.V.NAIK, 16/759, PUNEETH, BEHIND PVS HOSPITAL, CALICUT-2. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.KRITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 341 of 2010 --------------------------------------------- Dated this the 28th day of January, 2010 O R D E R Against the revision petitioner, a complaint was preferred before the Special Judicial First Class Magistrate Court (Marad cases), Kozhikode by the first respondent herein alleging that the accused had borrowed a sum of Rs.30,000/- from the complainant on 20.2.2006 with an undertaking to repay the same within one month and issued a signed blank cheque and when the cheque was presented for encashment, the same was dishonoured for want of fund and hence, he is guilty of the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') . On the basis of the above allegation, a case was instituted thereon as S.T.No.1537 of 2006 and the trial court, after the trial, found that the accused is guilty for the offence for which he was charged. On conviction, the revision petitioner is sentenced to undergo simple Crl.R.PNO.341 of 2010 :-2-: imprisonment for one month and to pay a sum of Rs.25,000/- as fine. The default sentence is fixed as one month simple imprisonment. It is also ordered to pay the fine amount, if realised, to the complainant as compensation under Section 357(1) of Cr.P.C. Aggrieved by the above conviction and sentence, the revision petitioner approached the Sessions Court, Kozhikode by filing Crl.A.No.463 of 2008. By the impugned judgment of the Sessions Court, while the conviction was confirmed, the sentence of imprisonment was reduced till rising of the court and maintained the sentence of fine awarded against the revision petitioner. It is the above conviction and sentence and the judgments of the courts below are challenged in this Crl.R.P. 2. The learned counsel appearing for the revision petitioner submitted that mere admission of signature in the cheque is not sufficient to hold that the cheque was executed and issued by the accused. The above argument was advanced by the counsel, based upon defence taken in Crl.R.PNO.341 of 2010 :-3-: the court below and such defence depends upon the facts and evidence involved in the case. The trial court as well as the lower appellate court have elaborately considered the above defence and came into a conclusion that the complainant has succeeded in establishing the active transaction including the issuance of the cheque and its execution. Being a revisional court, I am not proposed to go into the details of those facts and evidence on record. It is established by the complainant that on dishonour of the cheque, a formal statutory notice was issued to the accused which was received by him, but no reply was given within time. In this juncture, it is relevant to note that the parties are not strangers. The complainant is doing business in gold jewellery and she is also having share business. The accused had acquaintance with the complainant connected with the above business. To prove the case of the complainant, PW1 was examined and Exts.P1 to P6 were produced and marked. From the side of the defence, DW1, Crl.R.PNO.341 of 2010 :-4-: the accused herself and another witness DW2 were examined. Besides that, Exts.D1 to D4 were also produced and marked. It is brought on record that as indicated earlier, in spite of the receipt of statutory notice, no reply was given by the accused and it is further established that the accused initially issued Ext.P6 cheque in which the accused had put her signature even though the cheque belongs to the account maintained by her husband. According to the complainant, when he enquired about the cheque, it was realised that Ext.P6 cheque pertains to the account maintained by the husband of the accused. Thereupon, the complainant again contacted the accused and thereafter, she issued Ext.P1 cheque which was dishonoured. On the basis of the above incriminating circumstances and the evidence on record, the trial court as well as the appellate court has correctly found that the accused is guilty for the offence under Section 138 of the N.I.Act. Crl.R.PNO.341 of 2010 :-5-: 3. In the light of the above facts and circumstances and the reasoning given by the courts below, I am of the view that there is no merit in the revision petition and no interference is warranted. 4. Learned counsel for the revision petitioner submitted that some time may be granted to receive the sentence and to make the payment. Having regard to the facts and circumstances and the nature of the case, I am of the view that the said submission can be considered favourably. Accordingly, the revision petitioner is directed to appear before the trial court on 1.3.2010 to receive the sentence and to make the payment as ordered by the courts below. If the petitioner has not appeared on the date fixed by this Court and no amount is paid as directed, the trial court is free to take coercive steps to procure the presence of the revision petitioner and to execute the sentence. The Criminal Revision Petition is disposed of confirming the conviction and subjected to the above Crl.R.PNO.341 of 2010 :-6-: modification with respect to the sentence. sd/- V.K.Mohanan, Judge MBS/ true copy P.S.TO JUDGE. Crl.R.PNO.341 of 2010 :-7-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 ------------------------------------ -------- O R D E R Crl.R.PNO.341 of 2010 :-8-: DATED: -10-2009