IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 Crl.Rev.Pet.No. 954 of 2011() ----------------------------- CRA.584/2008 of ADDL. SESSIONS COURT, THRISSUR ST.2823/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER/APPELLANT/ACCUSED --------------------------------------------------- A.SALIM, AGED 40 YEARS, S/O. MAJEED RAVUTHER,SHAMEENA MANZIL, PARIPOORNA FOOD PRODUCTS, THANDALODE, MUDAPPALLUR.P.O., ALATHUR, PALAKKAD DIST. BY ADV. SRI.JOHN JOSEPH(ROY) SRI.TITUS JOSEPH RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. HASIM.K.A., S/O. ABOOBACKER, T.C.38/399, P.O.POOTHOLE, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb S.S.SATHEESACHANDRAN, J. ---------------------------------- Crl.R.P.No.954 OF 2011 --------------------------------------------- Dated this the 19th day of July, 2011 ORDER The revision is filed against the conviction of the petitioner, concurrently by two courts below for the offence under Section 138 of the Negotiable Instruments Act (for short the N.I. Act). The trial Magistrate on his conviction sentenced him to undergo simple imprisonment for one month and to pay compensation of Rs.55,000/- with default term of simple imprisonment for one month more. Challenge against that conviction was turned down by the Sessions Judge dismissing his appeal, but with modification of the sentence by which the substantial term of imprisonment was reduced to one day till rising of the court, retaining the compensation fixed and the defaulting term stipulated. Feeling aggrieved, the accused has preferred this revision. 2. I heard the learned counsel for the accused / revision petitioner. It is submitted by the counsel for the accused that neither in the complaint nor in the proof affidavit, and not even in the notice issued intimating dishonour, particulars of the transaction over the issue of the cheque involved, which was alleged to have been handed over by the accused, have been Crl.R.P.No.954 OF 2011 2 stated. The accused had denied the execution of the cheque and also passing of consideration thereunder. But, both the courts without taking note of the challenge so raised, according to the learned counsel, accepting the case of the complainant held the accused guilty and convicted him of the offence imputed. Such conviction, it is submitted, is unsustainable under law. 3. Going through the judgments rendered by the courts below, it is seen, the defence pleaded by the accused was that he had a money transaction with the complainant but there was no subsisting liability as he had discharged the amount obtained. The accused had also denied of receiving the statutory notice. Materials tendered by the complainant including acknowledgment evidencing service of notice, persuaded both the courts to hold the defences set up were devoid of any merit. The evidence in the case consisted of that the complaint and the materials tendered by him as Exts.P1 to P5 alone. The accused has not tendered any evidence. He did not mount the box and provide an opportunity to the complainant to question his defence. The evidence of complainant examined as PW1, was found convincing Crl.R.P.No.954 OF 2011 3 and trustworthy, to the learned Magistrate to hold the accused guilty. The learned Sessions Judge, after reappraising the evidence, confirmed the view taken by the trial Magistrate to hold that the accused was rightly convicted for the offence imputed. Within the limited scope of exercising the revisional jurisdiction, the finding on facts made by the two courts below needless to point out is unassailable where there is nothing to show that the view formed could not have been legitimately formed on the materials on record. The only plea that is now canvassed to challenge the conviction is absence of details in the complaint and evidence with respect to the transaction giving rise to the cheque issued by the accused. That is not a material factor to be considered, where nothing is placed by the accused before the courts below to discard the presumptions arising under section 139 and 118 of the N.I.Act. Conviction of the accused in such circumstances does not suffer from any infirmity whatsoever. 4. So far sentence imposed it is seen maximum leniency has been shown by the Sessions Judge by modifying the sentence imposed by learned Magistrate, as indicated, and it does not call Crl.R.P.No.954 OF 2011 4 for any further variation. The revision petition is dismissed. S.S.SATHEESACHANDRAN JUDGE. dmb