IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 Crl.Rev.Pet.No. 369 of 2002() ------------------------------------------- CRA.24/1996 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.3778/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER: APPELLANT/ACCUSED: ----------------------------- MOHAMMED RAFI, S/O.CHELLA RAWTHER, AGED 41 YEARS, KARANTHATIL HOUSE, VADAKKENCHERY, ALATHUR, PALAKKAD DIST. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS: RESPONDENT/COMPLAINANT: -------------------------- 1. K.K.HARIDAS, S/O.KUPPUSWAMI CHETIAR, CHELLAPPATHA, POLLACHI ROAD, KOZHINJAMPARA, CHITOOR TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.2608/2002 IN CRL.RP. NO.369/2002 DISMISSED 25.06.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.A. TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.369 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June 2008 ORDER Petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.1 herein. The trial court found the petitioner guilty and he was convicted and sentenced to undergo simple imprisonment for three months. He was further directed to pay Rs.1,85,000/- to the complainant as compensation. The above order of conviction and sentence was confirmed in appeal. Hence this revision petition. 2. The case of the complainant was that the petitioner/accused had borrowed a sum of Rs.1,75,000/- from him on April 24, 1994. The accused had issued Ext.P1 cheque dated May 23, 1994 in discharge of the said debt. But when the cheque was presented for encashment it was dishonoured with the following endorsement: “Account closed as per party's request on 30-4-1994”. The statutory demand notice issued by the complainant did not evoke any response. Crl.R.P.No.369 OF 2002 :: 2 :: 3. Before the trial court Pws1 to 4 were examined and Exts.P1 to P9 were marked. There was no oral or documentary evidence on the side of the accused. 4. The defence set up by the accused appeared to be that he had had no business or financial transaction with the complainant and that he had not borrowed Rs.1,75,000/- from him as alleged in the complaint. According to the accused, he had handed over a blank signed cheque to “a party in Coimbatore with whom he had been doing some business”. The said cheque might have been misused by the complainant to launch the present prosecution, it was stated by the accused in his statement given under Section 313 of the Code of Criminal Procedure. But according to the complainant, who was examined as PW2 in the case, the accused had borrowed the money for the purpose of his business. The complainant alleged that he knew the accused for 4 to 5 years. The accused had issued the post dated cheque on the day when the money was borrowed. In cross examination, PW2 claimed that he was a business man and that he was earning Rs.3,000/- to 5,000/- Crl.R.P.No.369 OF 2002 :: 3 :: rupees per month from his business. He admitted that he was not an assessee to Income Tax and that there was no document to show that he had been doing some business. He further conceded that the accused had no shop or business premises of his own. But according to the complainant, the accused was doing business in paddy, chillies, rice, etc. PW2 further admitted that accused had business connection with several people in Coimbatore. The specific suggestion put to the complainant that he had no resources or assets to lend such a huge sum to the accused was stoutly denied by him. 5. PW4, the postman attached to Vadakkanchery Post Office, was examined to prove that the registered lawyer notice was attempted to be delivered to the accused. It had come out in evidence that the accused had refused to claim the postal article despite service of intimation at the address shown on the envelope. PW4 admitted that he had not obtained any signature from the wife of the accused while serving the intimation. But according to PW4, he had handed over the intimation to the wife of the accused. PWs1 and 3 were the managers of the two Crl.R.P.No.369 OF 2002 :: 4 :: banks. The trial court as well as the appellate court have concurrently found that the complainant had succeeded in proving the charge against the accused under Section 138 of the Act. Accused had not bothered to adduce any contra evidence in the case. The complainant had adduced satisfactory evidence to show that Ext.P1 cheque was issued by the accused in discharge of a legally recoverable debt. In the absence of any contra evidence, I do not find any reason to interfere with the concurrent order passed by the courts below. Revision petition fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.369 OF 2002 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.369 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 25th June 2008