IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 Crl.Rev.Pet.No. 1359 of 2011() ------------------------------ CRA.436/2009 of SESSIONS COURT, PALAKKAD ST.86/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,OTTAPALAM .................... REVN. PETITIONER(S): REVISION PETITIONER ---------------------------------------- LINI K.S,SILA HOUSE, AGALI, KOTTATHARA P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT\ BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SANTHOSH P.V.,PULLATT VEETTIL CHITOOR,AGALI,MANNARKKAD-678582 PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ----------------------------------- Crl.R.P.No.1359 of 2011 ---------------------------------------- Dated this the 27th day of May, 2011 ORDER The challenge in this Crl.R.P is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments. 2. The allegation in the complaint is that on 05.09.2005 the revision petitioner/accused had borrowed an amount of Rs.2,45,000/- from the complainant on the assurance that it will be returned within three months. But the accused failed to keep her words and on demand at the issuance of the complainant, the accused issued a cheque dated 20.12.2005 for an amount of Rs.2,45,000/-. When the said cheque presented for encashment the same was dis- honoured as there is no sufficient funds in the account maintained by the accused. According to the complainant in spite of the notice sent to the revision petitioner informing him regarding the dishonour of the cheque and demanding the repayment of the cheque amount, no money Crl.R.P.No.1359 of 2011 2 was paid and therefore, the petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act. With the above allegation the complainant approached the petitioner to the Judicial First Class Magistrate Court, Mannarkkad wherein cognizance and institute ST No.569/2006. Subsequently, the case was transferred to Judicial First Class Magistrate Court-I, Ottappalam as per the order of Chief Judicial Magistrate, Palakkad and the case was re-numbered therein as CC No.1879/2008. Subsequently, the case was again transferred to the Judicial First Class Magistrate Court-II, Ottapalam the trial court wherein the case was re-numbered as ST.No.86/2008. During the trial of the case, the complainant himself as examined as PW1 and produced Ext.P1 to P5. From the side of the defence though no witness was examined, Ext.D1 is produced and marked. The trial court after consideration of the entire facts and circumstances involved in this case and the evidence and materials on record, came to the conclusion that Ext.P1 cheque was issued towards the discharge of the liability that Crl.R.P.No.1359 of 2011 3 due to the complainant and thereby the accused has committed the offence under Section 138 of the NI Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment till the rising of the court and further directed to pay compensation of Rs.2,45,000/- to the complainant under Section 357(3) of Cr.P.C. The default sentence is fixed as 15 days. 3. Aggrieved by the above order of conviction and sentence though an appeal was filed at the instance of the accused, by judgment dated, 10.3.2011 in Crl.AppealNo.436/2009 the court of Sessions, Palakkad dismissed the appeal confirming the conviction and sentence. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel for the revision petitioner and I have perused the judgments of the trial court as well as the appellate court. 5. The main contention advanced by the learned counsel for the petitioner is that connected with an offer of appointment in the shop of Tribal Welfare Society in favour Crl.R.P.No.1359 of 2011 4 of the complainant the accused issued a cheque in question which was misused by the complainant and connected with the said transaction the accused had already preferred a complaint before the Asst. Supdt. of Police, Agali. Thus, according to the learned counsel for the petitioner there was no transaction between the complainant and the revision petitioner as claimed by the complainant. In order to substantiate the above contention, learned counsel invited my attention to Ext.P1 cheque, wherein according to the learned counsel there is some interpolation with respect to the date and the cheque amount in figure shown in the cheque. On the basis of the above fact, the learned counsel submitted that there is variation in the deposition of the complaint and regarding the mode of execution of the cheque the complainant has no consistent case. I am unable to endorse the above contention and to interfere with the findings of the trial court as well as the appellate court. In this connection, it is relevant to note that except Ext.D1 pass book, no other evidence is produced by the defence to substantiate its contention. The trial court as well as the Crl.R.P.No.1359 of 2011 5 appellate court after having considered the evidence on record which are in terms of the allegation of the complainant in the complaint, came to the conclusion that the complainant has established the case and succeeded in proving the offence under Section 138 of the NI Act. 6. The consistent case advanced by the complainant is to the effect that the accused borrowed an amount of Rs.2,45,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque. In support of the above allegation the complainant has already filed an affidavit in lieu of the chief examination wherein also the stand of the complainant is that the accused brought filled cheque and handed over to the same to the complainant which cheque contain the signature of the accused. But during the cross examination, the complainant has stated that the cheque was written and brought and put the signature in front of him. As rightly observed by the learned Magistrate, the above version of the complainant is only a clarification of what the complainant has stated in the affidavit. On a bare perusal of Crl.R.P.No.1359 of 2011 6 the photostate copy of Ext.P1 cheque, it is seen interpolation with respect to the digit “5” that contained the amount in the figure as well as the date. Whereas the amount shown in letters there is no correction or interpolation etc. So perusal of the above endorsement in the cheque and reading of the evidence of PW1 the complainant, would show that there is no discrepancies or contradiction so as to reject the claim of the complainant and such defect has no terms on merit especially when the amount shown in letter tally with the figure. It is also relevant to note that though the accused has attempted to give an explanation as to how the cheque in question reached in the hands of the complainant, the same was not successfully discharged. The trial court as well as the appellate court concurrently found that the cheque in question was issued towards the discharge of the liability that due to the complainant and the petitioner has miserably failed to make out any case so as to interfere with the above concurrent findings of the courts below. Therefore, the conviction recorded by the trial court as well as the Crl.R.P.No.1359 of 2011 7 appellate court is confirmed. 7. Regarding the sentence also no interference is warranted since though an amount of Rs. 2,45,000/- involved, the sentence imposed is only one day simple imprisonment i.e., till the rising of the court. It is also clear that the court has issued a direction to compensate the complainant and the amount is fixed as equal to the amount shown in the cheque in question and the default sentence is also only 15 days simple imprisonment. Therefore, I find no reason to interfere with the sentence also. There is no merit in the revision petition and the same is dismissed accordingly. V.K.MOHANAN, JUDGE. pm/