IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Crl.Rev.Pet.No. 2677 of 2010() ------------------------------------ (CRA.628/2007 of SESSIONS COURT, TRIVANDRUM ST.775/2006 of) ................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ------------------------------------------------------ 1. M/S.HOTEL BLUE SEA,KOVALAM, THIRUVANANTHAPURAM,REP.BY D.SAJI,PARTNER. 2. D.SAJI,PARTNER,HOTEL BLUE SEA, KOVALAM.P.O,VIZHINJAM VILLAGE, THIRUVANANTHAPURAM. 3. D.SABU,PARTNER,HOTEL BLUE SEA, KOVALAM.PO,VIZHINJAM VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.N.R.SURESH KUMAR SRI. J. JAYAKUMAR RESPONDENT(S): RESONDENTS/COMPLAINANT AND STATE --------------------------------------------------------------------- 1. ASHOK KUMAR @ KUMAR,S/O.THANKAPPAN ACHARY,T.C.NO.23/647,THANKASWARA,VALIYASALA, THIRUVANANTHUPURAM. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. B. JAYASURYA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2677 of 2010 ------------------------------- Dated this the 8th day of September, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act are the revision petitioners, as they are aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that, A2 and A3 are the partners of the first accused firm and the 2nd and the 3rd accused borrowed a sum of Rs.1,68,000/- for and on behalf of the first accused and towards the discharge of the said debt A2 and A3 for and on behalf of the first accused signed and issued a cheque dated 18.6.2000, for an amount of Rs.1,68,000/- in favour of the complainant and when the said cheque presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioners have committed the offence punishable u/s.138 of Crl. R.P.No.2677 of 2010 2 Negotiable Instruments Act. With the said allegation, the complainant initially approached the Addl. Chief Judl. Magistrate Court-Trivandrum, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.43/02. Subsequently, the case was transferred to the Judicial First Class Magistrate Court-VI, Trivandrum, wherein the case is renumbered as S.T.No.775/06. During the trial of the case, Pws.1 to 4 were examined and Exts.P1 to P6 were marked, from the side of the complainant. No evidence either oral or documentary adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioners/accused for the purpose of discharging their debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioners and consequently found that the accused is guilty and thus convicted them u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioners 2 and 3 to undergo simple imprisonment Crl. R.P.No.2677 of 2010 3 for a period of 2 months and all the accused are directed to pay an amount of Rs.1,68,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and in case of default in paying the compensation amount, A2 and A3 are directed to undergo simple imprisonment for a period of 1 month. 3. Though an appeal was filed, at the instance of the revision petitioners/accused, by judgment dated 3.6.2010 in Crl.A.628/07, the Court of Sessions Judge, Trivandrum, allowed the appeal only in part and while confirming the conviction of the accused/revision petitioners, the sentence of imprisonment awarded against A2 and A3 is modified and reduced to imprisonment till the rising of the court and all the accused are directed to pay the cheque amount of Rs.1,68,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and in default, A2 and A3 are directed to undergo simple imprisonment of one month each. Accordingly, the revision petitioners are directed to appear before the trial court on 31.8.2010, to receive the sentence. It is the above conviction and sentence challenged in this revision petition. Crl. R.P.No.2677 of 2010 4 4. I have heard the learned counsel appearing for the revision petitioners and also perused the judgments of the courts below. 5. Reiterating the stand taken by the accused/revision petitioners during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioners u/s.138 of Negotiable Instruments Act, is approved. 6. The learned counsel for the revision petitioners vehemently argued that, the complainant has miserably failed to establish that the cheque in question was executed and issued in favour of the complainant and the courts below has miserably failed to consider the above vital aspect of the case and therefore the judgments of the courts below are liable to be set aside. It is also the contention of the learned counsel that, there is no Crl. R.P.No.2677 of 2010 5 materials or evidence in support of the transaction claimed by the complainant. The learned counsel submitted that regarding the source, for the purpose of passing over the consideration, the evidence are insufficient and therefore the findings arrived on by the courts below are liable to be set aside. 7. I have heard the learned counsel for the revision petitioners in detail and perused the judgments of the courts below. The main contention advanced by the learned counsel is to the effect that, the cheque in question contained the name as 'Kumar' whereas the name of the complainant is Ashok Kumar. Thus according to the learned counsel, there is no evidence to show that the complainant herein is the holder of Ext.P1 cheque. It is also the contention of the learned counsel that, according to the defence the cheque in question was given to PW3 while the accused availed loan from PW3. It is also the plea of the defence that, when Ext.P1 cheque was initially handed over to PW3, as directed by him, the accused endorsed the name in the cheque as 'Kumar'. But regarding this aspect, absolutely there is no evidence. The trial court has elaborately considered the above Crl. R.P.No.2677 of 2010 6 contention of the defence in para 8 and 9 of its judgment. In this respect it is relevant to note that, absolutely no evidence produced from the side of the defence to substantiate their plea. As evidenced from the cause title of the complaint, which reproduced in the trial court judgment, the name of the complainant is shown as Sri.Ashok Kumar @ Kumar. The trial court has specifically observed that even in the complaint, the name of the complainant is mentioned as Ashok Kumar @ Kumar. According to the learned Magistrate, the accused has not satisfactorily contradicted the contention that the complainant is commonly known as 'Kumar'. 8. According to the complainant, after dishonour of the cheque they issued Ext.P3 notice, which was accepted by the accused. Thus the accused has got an opportunity to deny the allegations contained in the complaint. But in the reply notice, no such version was put forwarded by the accused especially regarding the issuance of the cheque to Mr.Jaya Kumar, PW3. The trial court has specifically noted in para 9 of the judgment, that, in Ext.P6 there is no whisper as to the borrowel of any Crl. R.P.No.2677 of 2010 7 amount from the brother of the complainant namely Jayakumar or the issuance of Ext.P1 to the above said Jayakumar. During the trial, the complainant has himself mounted to the box and gave evidence and beside the above oral evidence of PW1, he had also oral evidence of Pws.2, 3 and 4 and thus he had established that, PW1 popularly known as 'Kumar'. It is also relevant to note that, when PW1 presented the cheque for encashment, the same was not returned by the bank authorities, on the basis of any mistake that, Ext.P1 cheque contain any wrong endorsement and if the cheque was actually given to Jayakumar he ought to have presented the cheque before the bank. It is also relevant to note that during the trial, the defence did not take any step to summon the bank officials and get any explanation as to why they issue 'dishonour memo', even though the cheque contained only the name of 'Kumar' instead of 'Ashok Kumar', who is the account holder. In the absence of any such materials or evidence in favour of the defence, it can not be said that the findings arrived on by the courts below is perverse or illegal or incorrect. Therefore I find no reason to interfere with the Crl. R.P.No.2677 of 2010 8 conviction recorded by the courts below. It is also relevant to note that, though the trial court sentenced each of the revision petitioners 2 and 3 to undergo simple imprisonment for a period of 2 months, the appellate court reduced the same to till the rising of the court and accordingly they were directed to appear before the trial court on 31.8.2010. Therefore, there is no scope to interfere with the sentence also. In the result, I find no reason to interfere with the conviction and sentence imposed by the lower appellate court. However, the revision petitioners are directed to appear before the trial court on 8.10.2010. The execution of warrant if any, pending against the revision petitioners shall be deferred till 8.10.2010. V.K.MOHANAN, Judge. ami/