IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 Crl.Rev.Pet.No. 2084 of 2011() ------------------------------ CRA.378/2010 of III ADDL.SESSIONS COURT, KOLLAM CC.29/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES),PUNALUR .................... REVN. PETITIONER(S): --------------------- V.G. PAPPACHAN, AGED 68 YEARS, S/O. GEE VARGHESE BLAHETHU VEEDU, ELIKKATTOR P.O., PIRAVANTHOOR, PATHANAPURAM. BY ADV. SRI.ALAN PAPALI RESPONDENT(S): --------------- 1. A. ABDUL AZEEZ, AGED 62 YEARS, HAZEENA MANZIL, PUNNALA, PATHANAPURAM TALUK-684131. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R2 BY PUBLIC PROSECUTOR SRI.REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2084 OF 2011 ----------------------------------------- Dated this the 2nd day of September 2011 ORDER Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently, by the two inferior courts. Negativing his plea of not guilty, the learned Magistrate, on his conviction, sentenced him to undergo simple imprisonment for six months and to pay compensation of `.72,000/-, the cheque amount, to the complainant and in default to undergo simple imprisonment for another three months. The appeal preferred by the accused as against his conviction was turned down by the learned Sessions Judge, but, with a modification of the sentence imposed by the trial Magistrate. Sentence was modified reducing the substantive term of imprisonment to one day, till the rising of the court, retaining the compensation awarded with the default term. Feeling aggrieved, the accused has preferred this revision. 2. I heard the learned counsel for the revision petitioner/accused. Challenge against the conviction concurrently rendered by the two courts below is assailed by the learned counsel solely on the ground that the transaction relating to Ext.P1 cheque as deposed to by the complainant, when he was examined as PW1, was shown to be false and erroneous by the materials tendered by the accused. In evidence, the Crl.R.P No.2084 OF 2011 - 2 - complainant has given a version that the amount covered by the cheque was advanced in relation to chitty business, and to discharge the liability thereunder, the instrument was handed over to the accused. That version was challenged by the accused contending that there was an agreement between the parties over the sale of a shop room and towards the advance of the amount fixed thereunder, a sum of `.72,000/- was paid by the complainant and received by the accused. However, later, through the intervention of the police the cheque had been collected from him for the sum towards the advance already paid as security for repayment of the amount, was his further version. To substantiate that challenge, he produced a photo copy of the agreement containing an endorsement, purportedly, signed by the complainant as to having received Ext.P1 cheque involved in the case. The accused also mounted the box to swear in support of the defence version so projected, apart from exhibiting the agreement containing the aforesaid version. So, in short, the challenge is that where a different transaction from the one canvassed by the complainant in relation to the cheque had been brought out, conviction for the offence under Section 138 of the NI Act could not have been founded against the accused. 3. After going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find no merit in the challenge canvassed by the counsel to assail the conviction of the Crl.R.P No.2084 OF 2011 - 3 - accused. It has to be taken note not only the 'payee' but a 'holder in due course' is also competent to file a complaint to prosecute the drawer of the instrument for the offence under Section 138 of the NI Act; provided the necessary ingredients constituted that offence on dishonour of the cheque are made out. It is not the transaction which give rise to the issue of the cheque that is a material question in deciding whether or not an offence has been made out, but the other ingredients which are spelt out under Section 138 of the NI Act, to sustain the prosecution of the offender on account of a cheque issued by him getting dishonoured on presentation. In the present case, even on the admission made by the accused, the liability is admitted. In fact, after the filing of the complaint against him he has filed an I.P, copy of which is produced as Ext.P7, wherein the liability of the sum under the cheque, even according to his counsel, has been included in the schedule appended to that petition. Cheque was handed over to the accused towards existence of a legally enforcible debt is also not under dispute. The only challenge is that the case canvassed by the complainant as to the circumstances under which the cheque was handed over, is not correct. The accused has a version that it was obtained from him with the assistance of a police officer. Whatever be the merit of that case, that has not been proved by any cogent and convincing evidence. When such be the case, where two courts, which have concurrently found on the materials placed that the Crl.R.P No.2084 OF 2011 - 4 - accused has committed the offence under Section 138 of the NI Act when an instrument issued by him got dishonoured due to insufficiency of funds in his account and the sum covered under that was not paid after receiving of the statutory notice, the plea canvassed that the transaction in respect of which the cheque as issued stated by the complainant, is not believable, has no value or merit at all. I do not find any merit in the challenge, as aforesaid, canvassed by the counsel to assail the conviction of the accused. 4. So far as the sentence imposed, sufficient leniency has been shown by the learned Sessions Judge in modifying the substantive term of imprisonment limiting it to imprisonment for a day, retaining the compensation awarded with default term. Sentence also, therefore, does not require any modification. 5. At this stage, the learned counsel for the petitioner/accused requested for some time to pay the compensation and, thus, avoid the default term of imprisonment. Petitioner has filed an Insolvency Petition and that is pending adjudication is also canvassed by the counsel to contend that he is indebted to several creditors and if reasonable time is not granted, he would have no other go but, to suffer the default term of imprisonment provided. The petitioner has filed an Insolvency Petition, needless to point out, could not absolve him from undergoing imprisonment imposed by a criminal court, whatever be the offence, as Crl.R.P No.2084 OF 2011 - 5 - punishment. Submissions made by the counsel for reasonable time deserve to be taken into account with reference to the date of issue of the cheque involved in the case, which has given rise to the prosecution and ultimately the conviction of the accused. Cheque involved in the case is dated 03-04-2006. The timelag thereafter and the continuance of the litigation till now, prima facie, disentitle the petitioner to claim any further time to pay the compensation awarded. However, taking into account the submissions made by the counsel, some more time as indicated hereunder can be provided, to pay the compensation. 6. Affirming the conviction and sentence imposed against the petitioner/accused, he is directed to appear before the Magistrate on 01-11-2011 to serve out the imprisonment for a day, till the rising of the court, and to report payment of the compensation. The learned Magistrate is directed to keep in abeyance the execution of the sentence imposed against the accused till the date fixed for his appearance. In default of his appearance and nonpayment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. vdv S.S.SATHEESACHANDRAN, JUDGE