IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 Crl.Rev.Pet.No. 1270 of 2010() ------------------------------ CRA.309/2007 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.3712/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- C.A.UNNIKRISHNAN, S/O.APPU GUPTHAN, CHEMBAMPADATH HOUSE, VAKKADAPURAM POST, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. K.CHANDRAMATHY, W/O.T.K.PRABHAKARAN, D.NO.22, NGO QUARTERS, KALLEPPULLY, PALAKKAD- REPRESENTED BY POWER OF ATTORNEY HOLDER T.K.PRABHAKARAN, D.NO.22, NGO QUARTERS, KALLEPPULLY, PALAKKAD. ADV. SRI.C.K.SREEJITH FOR R2 PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.No.1270 of 2010 ---------------------------------------- Dated this the 10th day of June, 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 Act. 2. The case of the complainant is that the accused borrowed an amount of Rs.2,50,000/- from him and towards the discharge of the said liability the accused issued a cheque dated 15.11.2002, for an amount of Rs.2,50,000/-, which when presented for encashment was dishonoured, stating that funds insufficient. Consequently, a notice was sent to the revision petitioner informing him regarding the dishonour of the cheque and demanding for the payment of the cheque amount, but no amount was paid. Thus according to the complainant the accused has committed the offence punishable under Section 138 of NI Act. With the above allegation, the complainant approached the court Crl.R.P.No.1270 of 2010 2 of Judicial First Class Magistrate-III, Palakkad by filing a complaint upon which cognizance was taken and S.T.No.3712/2003 was instituted. During the trial of the case PW1 was examined from the side of the complainant and Exts.P1 to P8 were marked. From the side of the defence Dws.1 to DW4 were examined and marked Exts.D1 and D2. After evaluation of the evidence on record and considering the facts and circumstances involved in this case, the trial court has found that Ext.P1 cheque was issued towards the discharge of the liability due to the complainant and accordingly found that the revision petitioner/accused is guilty of the offence under Section 138 of the NI Act and accordingly he is convicted and sentenced to undergo simple imprisonment for a period of 6 months and to pay a compensation of Rs.2,50,000/- to the complainant and the default sentence is fixed as simple imprisonment for a period of 3 months. 3. Aggrieved by the above order of conviction and sentence though the petitioner/accused had preferred an Crl.R.P.No.1270 of 2010 3 appeal, by judgment dated 22.2.2010 in Crl. Appeal No.309/2007 the court of Addl. Sessions Judge (Adhoc-I), Palakkad, dismissed the appeal confirming the conviction but the sentence is modified and reduced into till the rising of the court. Petitioner was granted 45 days time to pay the compensation amount. It is the above judgments of the courts below and the conviction and sentence are challenged in this revision petition. 4. Heard Sri.Sajeevkumar, learned counsel appearing for the petitioner and Sri.C.K.Sreejith, learned counsel appearing for the respondents and I have also perused the judgments of the court below and the materials and evidence on record. 5. The learned counsel for the petitioner vehemently submitted that the petitioner was not given sufficient opportunity to adduce evidence and he is denied his right to cross examine PW1, who was examined on behalf of the complainant. It is also the specific contention of the learned counsel that PW1 was once the power of attorney the Crl.R.P.No.1270 of 2010 4 accused/revision petitioner who is also the husband of the complainant, had occasioned to have in possession of the cheque belonging to the revision petitioner and thus, the cheque in question is not the one which executed and issued by the accused in favour of the complainant, whereas it was removed by PW1 who was acting as the power of attorney holder of the petitioner and thereafter by mis-using the same lodged the complaint, showing his wife as the complainant. Thus, according to the learned counsel there is no transaction between the revision petitioner as well as respondents/complainants and there is no consideration and thus no offence is attracted and therefore, the judgment of the trial court are liable to be set aside or in the alternative the matter requires remand with liberty to cross examine PW1. 6. On the other hand, after inviting my attention to the court proceedings the counsel for the respondents submitted that the petitioner was given ample opportunity to cross examine PW1 but he did not avail such opportunity. Crl.R.P.No.1270 of 2010 5 It is also the submission of the counsel for the respondent that even after the closing of the evidence of the complainant, no petition was filed to reopen the evidence so as to re-call PW1 for the purpose of cross examination. It is also the submission of the learned counsel that the accused/petitioner has miserably failed to give an account as to how the complainant came in possession of the cheque which duly executed and contained the signature of the accused. Therefore, according to the learned counsel the trial court as well as the appellate court came into the correct conclusion that the cheque in question was issued by the accused towards the discharge of the liability connected with the transaction claimed by the complainant and hence no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the learned counsel for the respondents. I have perused the judgments of the court below and the evidence and materials made available to me. Crl.R.P.No.1270 of 2010 6 8. The specific case of the complainant is that the accused borrowed a sum of Rs.2,50,000/- from him and towards the discharge of the said liability the accused had issued a cheque i.e., Ext.P1 dated 15.11.2002 which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the petitioner and the said amount was not repaid in spite of Ext.P4 lawyer notice. Thus, section 138 of NI Act is attracted. 9. The contention of the learned counsel for the petitioner that there is no transaction between the complainant and the petitioner has properly considered by the trial court as well as the appellate court and found against him. The only contention raised by the petitioner/accused is that PW1 who was examined on behalf of the complainant was the power of attorney holder of the revision petitioner and on that authority he had occasion to have possession of several documents including cheque leaves signed by the revision petitioner and also cash belong to him. But, though Dws.1 to 4 were examined and Crl.R.P.No.1270 of 2010 7 Ext.D1 and D2 documents were produced from the side of the defence the above contention is not substantiated to the satisfaction of the court. It may be true that cheque were encashed as claimed by the revision petitioner probably by PW1 but that does not mean that PW1 was in possession of the cheque in question. Ext.P7 reply issued by the accused/revision petitioner himself would be sufficient to reiterate the above position. In Ext.P7 reply, which was not issued by an advocate as authorized by the revision petitioner, but by himself, it is stated that he had issued two cheques showing certain amount as indicated in Ext.P7 and fully signed by him. From Ext.P7 two factors are revealed and proved and the first factor is that the cheque in question was he who voluntarily given to PW1 or his wife. The second factor disclosed is that the cheque in question is not one which entrusted because of his power of attorney executed in favour of PW1. In Ext.P7 reply, it is categorically stated what purpose for which the cheque in question were issued in favour of PW1 or the wife, the Crl.R.P.No.1270 of 2010 8 complainant. So Ext.P7 itself goes against the very defence taken by the accused/revision petitioner in the trial. There is no dispute regarding the signature contained in Ext.P1. From the very admission of the petitioner it cannot be said that the complainant is stranger to the revision petitioner. Therefore, the revision petitioner has miserably failed to establish the defence and failed in convincingly explain as to how the complainant came in possession of the cheque in question, which pertained to the account of the revision petitioner and Ext.P7 would reinforced the claim of the complainant. 10. When PW1 was examined he had disposed in support of the allegation contained in the complaint and the complainant produced Ext.P1 cheque from her possession through PW1. In this case, it is relevant to note that though the complainant was not examined from the side of the prosecution, she was examined as DW1 as defence witness and during her examination she had deposed before the court regarding the transaction and the liability of the Crl.R.P.No.1270 of 2010 9 accused/revision petitioner and which evidence of DW4 remain as un-challenged. Thus, on a consideration of the entire facts and circumstances, involved in this case, in the light of the evidence and materials on record it can be seen that the complainant has established a prima facie case against the accused so as to avail presumption under Section 139 of the NI Act, but the accused/revision petitioner has miserably failed to rebut the presumption. 11. Another contention raised by the counsel for the petitioner is that he was not given opportunity to cross examine PW1. As rightly pointed out by the counsel for the respondents, from the proceedings of the trial court, it can be seen that the accused revision petitioner or his counsel in the trial court failed to use the opportunity particularly which were available on 18.9.2004, 1.10.2004, 18.12.2004, 15.1.2005, 15.5.2005 and 25.6.2005. It is also relevant to note that the complainant was subsequently present on various dates and neither on those occasions nor thereafter, any step was taken by the accused to re-open the evidence Crl.R.P.No.1270 of 2010 10 or to recall PW1. Therefore, the contention of the revision petitioner that no opportunity was given to him to cross examine PW1 will also fail. Thus, I find no reason to interfere with the concurrent findings of the court below and accordingly the conviction of the petitioner under Section 138 of NI Act is confirmed. 12. Regarding the sentence also no scope for interference because, though the trial court imposed a sentence of 6 months imprisonment the appellate court reduced the same into one day simple imprisonment and maintained the direction to pay compensation to the complainant. Therefore, no interference is warranted with respect to the sentence also. 13. As this court is not inclined to interfere with the order of conviction, the counsel for the revision petitioner submitted that breathing time may be given to the petitioner to pay the compensation amount, I find no reason to reject the above submission and according to me, only one month time can be granted to pay compensation Crl.R.P.No.1270 of 2010 11 amount, the judgment of the trial court is dated 22.02.2010, and the appellate court has already granted 45 days time to pay the compensation amount. It is made clear that the default sentence is fixed by the courts below will be attracted only in case of failure on the part of the petitioner in paying compensation amount within one month time from today. Subject to the above extension of time, to receive the sentence and to pay compensation the revision petition is dismissed. V.K.MOHANAN, JUDGE pm/