IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.Rev.Pet.No. 223 of 2000() ----------------------------- CRA.209/1998 of ADDL. SESSIONS COURT, THRISSUR ST.4254/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- SOMANATHAN, SON OF MANDAKATHINKAL SANKARAN, KORATTIKARA VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.T.A.RAJAGOPALAN RESPONDENT/RESPONDENT/COMPLAINANT: --------------- 1. ALEXANDER, SON OF MUTTTHVEETTIL VARAPPAN, PAMBADI DESOM, PORKULAM VILLAGE, TALAPPILLY TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.JIJO PAUL FOR R1 PUBLIC PROSECUTOR SRI. K.K.JACOB. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08 /2009, THE COURT ON 25/08/2009 PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.223 of 2000 ----------------------------------------- Dated this the 25th August, 2009 O R D E R Revision petitioner was convicted and sentenced by the Magistrate Court to undergo simple imprisonment for 3 months and to pay a fine of Rs.51,000/- for offence under Section 138 of the Negotiable Instruments Act and in default of payment of fine, to undergo simple imprisonment for 3 months. If the fine amount is realised, an amount of Rs.50,000/- was ordered to be given to the complainant as compensation under Section 357 Cr.P.C. In appeal, the Sessions Court confirmed the conviction, but modified the sentence to undergo simple imprisonment for one month. He was also directed to pay compensation of Rs.50,000 to the respondent, failing which he will undergo further simple imprisonment for one month. The said conviction and sentence are challenged in this revision. 2. According to prosecution, the petitioner borrowed an amount of Rs.50,000/- from the complainant-first respondent and towards the discharge of the said debt, Exhibit P1 cheque Crl.RP.223/00 2 was issued by the accused on the account maintained by him in a bank. On presentation, it was dishonoured as funds insufficient and a notice was issued calling upon him to pay the amount. No amount was paid and hence, a complaint was filed in compliance of the provisions of the Negotiable Instruments Act. 3. The evidence consists of oral testimony of PW1 and PW2 and Exhibits P1 to P7. The accused did not adduce any evidence. Both the courts found that the evidence of PW1 is believable to hold that Rs.50,000/- was borrowed from the complainant and for discharge of the same, Exhibit P1 was issued by him. Since the complaint was filed in compliance of the various provisions, conviction was confirmed. 4. Learned counsel for the revision petitioner argued that the complainant had no capacity to pay the amount and that only Rs.8,000/- was received by the accused. It is also submitted that the cheque issued was a blank cheque and the handwriting in the cheque is not that of the accused. To prove this fact, a petition was filed before the appellate court for getting the cheque examined by expert but it was dismissed Crl.RP.223/00 3 by the appellate court, without consideration of the relevant aspects. It is also submitted that as per the Income Tax Act, an amount can be given by way of loan only by way of an account payee cheque, if the loan amount exceeds Rs.20,000/-. The Supreme Court held in Krishna Janardhan Bhat v. Dattatraya G.Hegde ( (2008)4 SCC 54) that the courts below failed to notice the said fact and hence, the lower court ought to have found that no amount was paid to the revision petitioner, as alleged by the complainant. 5. Learned counsel for first respondent argued that courts below rightly came to a concurrent finding that there is nothing to disbelieve evidence of PW2 and that the transaction and issuance of Exhibit P1 cheque are proved by evidence. It is also submitted that accused had sufficient opportunity to adduce evidence and a posting was also given for adducing evidence, but, he did not avail of such opportunity. It is also submitted that in the petition filed by him before appellate court for additional evidence, accused did not stated state any reason why additional evidence should be allowed. 6. On hearing both sides and on going through the Crl.RP.223/00 4 records and the judgments of the courts below, I find that there is concurrent findings on facts. Both the courts have believed PW1 to hold that a transaction as alleged has taken place and Exhibit P1 cheque was drawn by the accused on his account towards the discharge of the debt. On going through the evidence, I find that there is absolutely no reason why this Court shall interfere with such concurrent findings. As rightly pointed out by the leaned counsel for the complainant, the accused has not challenged the transaction as such, but his case is that only Rs.8,000/- was paid. Such defence was taken up in the reply notice also. 7. In the cross-examination, nothing is brought out to show that the complainant has no capacity to pay. He has also not taken up a contention that the amount should be paid by a cheque and since it was not paid by way of cheque, the alleged transaction has not taken place etc. In such circumstances, there is no point in now arguing that the transaction is not proved. As per Section 271(d) of the Income Tax Act, if the amount is not paid by way of cheque, in case of a loan exceeding Rs.20,000/-, it is punishable. That means, Crl.RP.223/00 5 there may be cases where amounts are given not by way of cheques. In the absence of anything on record challenging this aspect, I am not inclined to accept the arguments raised on behalf of the accused regarding the Income Tax Act. 8. The accused has not challenged the handwriting in the cheque. A bare suggestion was made that a blank cheque was misused. In the evidence, PW1 has not stated that cheque was written by accused. In the cross-examination, there is nothing to show that handwriting in the cheque is not that of the accused. In such circumstances, there is no point in sending the cheque for handwriting examination also. The court below rightly rejected the application for additional evidence, since no sufficient ground is made out, as per the petition. 9. On considering various facts and circumstances of the case, I find that sentence can be modified in this case ensuring payment of compensation. Learned counsel for first respondent submitted that he has no objection in converting the sentence to imprisonment till rising of court. In the above circumstances, I find that the sentence can be still reduced. Crl.RP.223/00 6 Hence, the following order is passed: (i) The conviction passed against the petitioner is confirmed. (ii) The sentence is modified as follows: The petitioner shall undergo imprisonment till rising of court and pay Rs.50,000/- to PW2 as compensation and in default, he shall undergo simple imprisonment for seven months. The Criminal Revision Petition is partly allowed. (Sd/- K.HEMA, JUDGE) vgs. /True copy/ P.S to Judge Crl.RP.223/00 7 K.HEMA, J. ------------------------------ Crl.R.P.NO.223 of 2000 ------------------------------ O R D E R 25.8.2009