IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.Rev.Pet.No. 281 of 2004(A) ------------------------------ CRA.467/2002 of SESSIONS COURT, KOTTAYAM CC.31/1998 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- T.R. KURIAN, S/O. RAPPAI, THALIATH HOUSE, NEAR ST. JOSEPH'S COLLEGE, THRISSUR DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. JACOB GEORGE, S/O. VARKEY, KUTHIVALACHAL HOUSE, KIZHATHADIYOOR KARA, LALAM VILLAGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JAMES KURIAN FOR R1 PUBLIC PROSECUTOR SRI.MUAHMMED PUZHAKKARA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.281 of 2004-A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2010 Order Petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act. The trial court found him guilty and convicted and sentenced him to undergo simple imprisonment for one year and also to pay a sum of Rs.3 lakhs as compensation under Section 357 (3) of the Code of Criminal Procedure and in default of payment to undergo further imprisonment for three more months. The above order was confirmed in appeal by the Sessions Court. Hence this revision petition. 2. The case of the complainant (respondent No.1 herein) was that the petitioner accused had issued a cheque dated May 31, 1997 for a sum of Rs.1, 50,000/- in partial discharge of a debt due from him. When the said cheque was presented for encashment it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued it was returned unclaimed. Therefore the petitioner/accused was prosecuted before the trial court. 3. The complainant got himself examined as Pw.1 before the Icrl.RP.281/2004. : 2 : trial court and marked Exts.P1 to P5 on his side. Petitioner/accused was examined as DW.1 and his witness as Dw.2, though no documentary evidence was adduced. The learned Magistrate while appreciating the oral and documentary evidence available on record found that the complainant had received the cheque duly executed by the accused in discharge of a legally enforceable debt and that the said cheque on presentation was dishonoured due to insufficiency of funds. The fact that the statutory demand notice was returned unclaimed was also satisfactorily established. 4. It appears that the case of the accused was that he and the complainant were partners in a business and that the said business ended up in loss. He contended that Ext.P1 cheque happened to be issued in connection with that business. But as rightly noticed by the courts below, the execution of the cheque was never disputed and there was also no controversy as regards dishonour of the cheque due to insufficiency of the funds in the account of the petitioner/accused. More importantly, the petitioner/accused could not substantiate his contention that the cheque was not issued in discharge of a legally enforceable debt. 5. Having carefully perused the entire materials available on record and also considering the orders passed by the courts below, I have no hesitation to uphold the concurrent order of conviction Icrl.RP.281/2004. : 3 : passed by the courts below. 6. At this stage learned counsel for the petitioner submits that some leniency may be shown in the matter of sentence. But I am afraid the above prayer cannot be granted for reasons more than one. The trial court has taken note of the fact that the petitioner/ accused had been wilfully procrastinating the matter at every stage of the trial. For instance, after closure of the evidence on the side of the complainant petitioner was questioned under Section 313 of the Code. At that stage he approached this Court contending that he was not given an opportunity to examine his witnesses. This Court granted the prayer for examination of defence witnesses and directed the trial court to dispose of the case within three months. The defence witnesses cited by the petitioner, one of whom was none other than his co-brother and the other a close acquaintance, did not appear in court. These witnesses had to be brought before the Court after taking coercive steps. After examination of these witnesses petitioner accused absconded for about 8 months. Even though non bailable warrant was issued, petitioner could not be arrested and produced before the Court. At that stage he approached this Court yet again and obtained an order permitting him to surrender before the trial court and seek bail. But still, the petitioner did not surrender as undertaken by Icrl.RP.281/2004. : 4 : him before the Court. Ultimately after issuance of non bailable warrants and initiation of coercive steps the petitioner appeared before the Court. At that stage he filed an application with a prayer to allow him to examine two more witnesses. The said petition was dismissed by the trial court. Learned counsel for the petitioner submitted before the Court that he had no arguments to be advanced. It was in the above circumstances that the trial court disposed of the matter after hearing learned counsel for the complainant and after examining the oral and documentary evidence, both on the side of the prosecution and the defence. 7. Keeping in view the above conduct of the petitioner, the prayer for leniency in the matter of sentence cannot be considered favourably. In my view, the sentence imposed by the appellate court which has already shown considerable leniency is just and proper. In the facts and circumstances of the case I do not find any merit in any of the contention raised by the petitioner. The revision petition fails and it is accordingly dismissed. A.K. Basheer an. Judge.