IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.Rev.Pet.No. 272 of 2011 ----------------------------------- ( CRA.699/2009 of THE ADDL.SESSIONS JUDGE (ADHOC-II), ERNAKULAM CC.94/2009 of CHIEF JUDL.MAGISTRATE COURT, ERNAKULAM) .................... REVN. PETITIONER(S): PETITIONER/ACCUSED/APPELLANT -------------------------------- P.E.JOHN, S/O.EASY, PANDIYATHUMPARAMBIL, ERATTAKKULANGARA, PACHALAM, KOCHI-12. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENTS(S): COMPLAINANT -------------------------- 1. JOHN VICTOR P.A., S/O.A.ABSALOM, PLANKALA HOUSE, BAVAS COLONY, PULLEPPADY JUNCTION, KOCHI-35. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.G.SARATHKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J. ----------------------------------------------------- Crl.R.P.No. 272 of 2011 ---------------------------------------------------- Dated this the 22nd day of March,2011 O R D E R The challenge in this Crl.R.P. is against the conviction and sentence imposed against the revision petitioner who faced prosecution under Section 138 of the N.I.Act. 2. The case of the prosecution is that the accused borrowed a sum of `.90,000 from the complainant and to discharge the liability, issued a cheque dated 21.1.2000 in favour of the complainant which when presented for encashment, dishonoured since the account of the accused was closed. Though notice was sent, informing the accused regarding the dishonour of cheque and demanding payment of the amount covered by the dishonoured cheque, no payments were made. Thus, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, the complainant approached the Chief Judicial Magistrate Court, Ernakulam by filing a complaint upon which cognizance was taken Crl.R.PNO.272 of 2011 :-2-: for the offence under Section 138 of the N.I.Act against the revision petitioner/accused. On taking cognizance, the case was re-numbered as C.C.No.280 of 2001 on 7.2.2001. According to the records, the accused thereafter absconded and the case was transferred to the Register of Long Pending Cases as L.P.No. 26/2007. Subsequently, the case was taken reopened and refiled as C.C.No.94 of 2009. During the course of the trial, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, though no document was produced, Dws.1 and 2 were examined. Finally, the trial court found that the accused is guilty under Section 138 of the N.I.Act and accordingly, on convicting him for the above offence, sentenced him to undergo simple imprisonment for a period of three months and to pay fine of Rs.1 lakh and the default sentence is fixed as one month simple imprisonment. It is also ordered that on realisation of the fine amount, a sum of Rs.90,000/- shall be paid to the complainant as compensation under Section 357(1) Crl.R.PNO.272 of 2011 :-3-: (b) of the Cr.P.C. 3. Though the above conviction and sentence challenged by preferring an appeal, by judgment dated 8.10.2010 in Crl.A.No.699 of 2009, the court of Additional Sessions Judge (Adhoc-II),Ernakulam allowed the appeal only in part and accordingly, while confirming the conviction, the sentence is modified and reduced to simple imprisonment till the rising of the court and also directed to pay compensation of `.1,10,000/- to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as two months simple imprisonment. It is the above conviction and sentence and the judgment of the courts below challenged in this Crl.R.P. 4. I have heard Sri.Dinesh.R.Shenoy, leaned counsel appearing for the revision petitioner and Sri.K.G.Sarathkumar, learned counsel appearing for the first respondent and the learned Public Prosecutor appearing for second respondent. 5. Learned counsel for the revision petitioner vehemently Crl.R.PNO.272 of 2011 :-4-: submitted that the judgments of the courts below and its findings are liable to be set aside on three grounds. The main ground is that the discrepancies and contradictions occurred in the deposition of PW1 will be sufficient to show that the complainant has miserably failed to establish the essential ingredients of Section 138 of the N.I.Act beyond reasonable doubt. The second ground is that by dismissing the petition to examine one Thampi, who is cited as one of the witnesses of the defence, the trial court, denied the opportunity of the accused to effectively challenge the case of the complainant including the transaction and execution of the cheque. Another ground is that the dismissal of another petition for summoning the Bank Manager to produce the Cheque Issue Register also resulted in prejudice to the defence case, to substantiate the falsehood of the case of the complainant. So, according to the learned counsel, the judgments of the courts below are liable to be set aide on the above grounds. 6. On the other hand, learned counsel for the first respondent Crl.R.PNO.272 of 2011 :-5-: submitted that the very attempt of the defence right from the filing of the complaint is to protract the matter and during the course of the trial, the counsels were changed on three times and the petitions for summoning the defence witnesses were filed belatedly for the purpose of protracting the trial. It is also the submission of the learned counsel that even the accused himself has admitted the liability during his examination as a witness before the trial court. So, according to the learned counsel, the findings of the courts below are supported by evidence and materials and there is no illegality or perversity to interfere with the findings and the judgments of the court below. 7. I have carefully considered the arguments advanced by both the counsel for the revision petitioner as well as the respondents. I have also perused the judgments of the courts below. The jurisdiction of this Court while exercising the revisional jurisdiction is very limited. The trial court as well as the appellate court, who are the fact finding authorities, have concurrently found that the cheque in Crl.R.PNO.272 of 2011 :-6-: question was issued by the accused towards the discharge of the legally enforceable debt, due to the complainant. It is the above findings of the courts below sought to be interfered in this Crl.R.P. From the facts and circumstances involved in the case, it appears to me that the complainant as well as the accused are not strangers. According to the complainant, the accused requested for loan from him when his business resulted in loss and thus, he paid a sum of Rs.90,000/- to the revision petitioner. Towards the discharge of the said liability, the accused issued the present cheque. Learned counsel for the revision petitioner submitted that the above case of the complainant is not established beyond reasonable doubt. In order to substantiate the above contention, the learned counsel took me through the deposition of PW1. He pointed out that regarding the place of payment of money, there is contradiction. When he stated in the affidavit in lieu of chief examination that the payment was made from his house, during the cross-examination, he shifted the place of Crl.R.PNO.272 of 2011 :-7-: payment from the house to his workshop. The learned counsel also pointed out that regarding the mode of payment at the time of filing the complaint, PW1 did not state that the amount was paid in instalments, but when cross-examined, he had deposed that the amount was paid in three instalments. According to the learned counsel, the above facts would show the falsity of the complainant's case and the case of the defence would strengthen. Learned counsel for the respondent submitted that the accused himself during his cross- examination admitted that he did not respond to the lawyer notice and no reply was issued since he was about to discharge the liability. The trial court, who got the opportunity to assess the demeanour of the witnesses and the accused and on the basis of their performance during the trial and after appreciation of the evidence on record, came to a conclusion that the cheque in question was issued towards the discharge of the liability. In this juncture, it is relevant to note that the entire defence version is put forward during the time of the trial and Crl.R.PNO.272 of 2011 :-8-: no reply was given by the defence at appropriate time. Of course, the defence has a right to keep silence, but the omission to send reply will be also a factor to be considered while appreciating the entire case including the defence. In this juncture, it is pertinent to note that in order to substantiate the case of the complainant, he had produced the cheque in question from his possession and deposed before the court that the said cheque was issued by the accused towards the discharge of the liability that is due to the complainant. On the other hand, the defence taken by the accused is to the effect that the cheque in question is the one which was entrusted with the father of the complainant, when the accused borrowed a sum of Rs.35,000/- from the father of the complainant during the year 1990 and there is no transaction between the complainant and the revision petitioner. Absolutely, there is no material or evidence produced by the defence to substantiate the above version. Therefore, the question to be considered is whether the court is bound to give preference to the Crl.R.PNO.272 of 2011 :-9-: version of defence, which is unsupported by any material or evidence, when the case of the complainant is supported by contemporary document as well as substantial evidence. In this juncture, it is relevant to note that if the case of the defence is true, by using the earliest opportunity, he could have set forth his defence by giving reply to the lawyer notice, but that was not done. It is the specific plea of the defence to the effect that the complainant approached the revision petitioner to issue a fresh cheque since the cheque, which is given to the father of the complainant, was time barred and thus, according to the defence, a new cheque was issued. The above story of the defence cannot be swallowed without a pinch of salt. If actually a new cheque was issued, it was for the defence to demand back the earlier cheque, which is allegedly given to the father of the complainant. No timely step was taken for getting back the said cheque in spite of the lawyer notice. So, silence, without giving reply to the lawyer notice, assumes importance, and in the present case, the Crl.R.PNO.272 of 2011 :-10-: same will go against the accused. 8. The trial court, after considering the evidence and materials, came to a conclusion that the distance between the house and workshop of the complainant is only 16 metres and therefore, the slight variation regarding the place of payment of the amount has no relevance or much consequence. In the absence of any positive evidence in support of the defence case, I am of the view that the above findings of the trial court is fully justified and variation regarding the place of payment has no much relevance. 9. It is also relevant to note that when DW2 was examined, he had deposed that he is aware of the transaction between the revision petitioner and the father of the complainant. But, connected with that transaction, as I indicated earlier, the revision petitioner did not take any steps to get back that cheque, if any. DW2 further stated that he is not aware of the transaction between the complainant and the revision petitioner. The same would be the position if Mr.Thampi, one of the Crl.R.PNO.272 of 2011 :-11-: witnesses cited by the accused is examined. It is also beyond dispute that after allowing the petition moved by the accused/defence, summons were issued to the said Thampi. But, no effort was made by the defence to bring the said Thampi before the trial court and get examined him. The failure on the part of the defence bringing their witnesses cannot be made as a ground to disbelieve the case of the complainant. The trial court also found that as the cheque in question is dated 21.1.2000, there is every possibility that the cheque in question might have been issued by the banker prior to 2000. So the above reasons given by the trial court to discard the defence version appears to be correct and no interference is warranted. In this juncture, it is relevant to note that the mere denial of execution and issuance of cheque is not sufficient to discharge the burden of the defence to rebut the presumption which is otherwise available in favour of the complainant in view of the deposition of PW1 and Ext.P1 cheque. The defence has no dispute regarding the signature in Crl.R.PNO.272 of 2011 :-12-: Ext.P1 cheque. Even, according to the defence, the cheque in question was issued to the father of the complainant. The above version can be treated as only a lame excuse to escape from the penal liability especially, in the absence of any positive evidence in support of the above version. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent finding of the court below and the conviction recorded. 10. Regarding the sentence, it is relevant to note that though the trial court has imposed a sentence of three months simple imprisonment and fine of Rs.1 lakh, the appellate court has reduced the same to one day simple imprisonment till the rising of the court and instead of fine, the petitioner is directed to pay compensation of Rs.1,10,000/-. Therefore, I find no reason to interfere with the sentence also. 11. As this Court is not inclined to interfere with the order of conviction and sentence, the learned counsel for the revision petitioner Crl.R.PNO.272 of 2011 :-13-: submitted that some breathing time may be granted to the revision petitioner to pay the amount fixed by the appellate court and also for receiving the sentence. Having regard to the facts and circumstances of the case, I am of the view that the said submission requires positive consideration and the petitioner can be granted forty five (45) days time. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment, the direction to pay compensation, the compensation amount and default sentence as ordered by the appellate court, the petitioner is granted forty five days time to pay the compensation amount and it is made clear that the default sentence fixed by the appellate court will be attracted only if there is any failure on the part of the revision petitioner to pay the compensation amount within 45 days time from today. Accordingly, Crl.R.PNO.272 of 2011 :-14-: the revision petitioner is directed to appear before the trial court to receive the sentence of imprisonment fixed by the appellate court and to pay the compensation amount as ordered against him on 6th May,2011. In case of any failure on the part of the revision petitioner in appearing before the trial court to receive the sentence and to pay the compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 6th May,2011. V.K.MOHANAN, Judge. MBS/ Crl.R.PNO.272 of 2011 :-15-: V.K.MOHANAN, Judge. MBS/ Crl.R.PNO.272 of 2011 :-16-: