IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3614 of 2009() ------------------------------ CRA.309/2008 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.410/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SUNNY THOMAS, P.W.D.CONTRACTOR, KALATHIL HOUSE,THEKKEKARA.P.O/MURI,CHAMPAKULAM VILLAGE, KUTTANAD TALUK. BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL SRI.VARGHESE PARAMBIL RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. SAJI.S,CONTRACTOR,RESIDING AT SREE KARUNYAM,VALLYAKUZHI MURI,CHEPPAD,MUTTOM, KARTHIKAPPALLY TALUK. PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jma P.S.GOPINATHAN, J. ----------------------------------- Crl.R.P.No.3614 of 2009 ---------------------------------- Dated this the 30th day of November, 2009 ORDER The Judicial Magistrate of the First Class-II, Haripad in S.T.No.410 of 2006 on his file convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for eight months and a fine of Rs.3,55,000/-. Fine if realised, was ordered to be paid to the second respondent who was the complainant before the trial court. 2. Being aggrieved, the revision petitioner took up the matter in Criminal Appeal No.309 of 2008. By judgment dated 12/3/2009, the Additional Sessions Judge-I, Mavelikkara while confirming conviction and sentence, dismissed the appeal. Now this revision petition. 3. It was argued that Ext.P1 cheque was drawn in favour of one Sasi and that the second respondent is Saji and hence there is failure on the side of the second respondent to establish the offence under Section 138 of the Negotiable Instruments Act. It was also argued that when the complainant failed to prove the execution, no presumption under Sections 118 and 139 of the Crl.R.P.No.3614 of 2009 2 Negotiable Instruments Act can brought into operation. In support of the argument the learned counsel had given reliance to the decision in Marimuthu Kounder Vs. Radhakrishnan (1990 (1)KLT 634). 4. Having heard the learned counsel for the revision petitioner and perusing the judgments impugned as well as the copy of the Ext.P1 cheque and the evidence of PW.1, which was made available by the learned counsel, I find the very case of the second respondent is that the revision petitioner owed a sum of Rs.3,55,000/- being the value of the gravel supplied to the revision petitioner who was a contractor and in discharge of the said liability, Ext.P1 cheque for the said amount was delivered to the second respondent and that when it was sent for collection it was returned bounced for insufficiency of funds as evidenced by Exts.P2 and P3 memos and that despite the acknowledgment of a lawyer notice demanding discharge of the liability as evidenced by Exts.P4 and P6, the liability was not discharged. The evidence of 2nd respondent as PW.1 on that aspect remains unimpeached. When questioned under Section 313 of the Code of the Criminal Procedure after recording the evidence for the second Crl.R.P.No.3614 of 2009 3 respondent, the revision petitioner took up a defence that he had dealings with one Sasi and when Sasi and 4 others made some problem at his house four blank cheques drawn on Bank of Baroda and another blank cheque drawn on Federal Bank was issued and that one of the cheques drawn on Bank of Baroda is the disputed cheque and on receipt of the notice more than Rupees two lakhs was paid and the balance amount would be discharged to the said Sasi as and when his final bill was passed from the Thrikkunnapuzha Grama Panchayat and he had no transaction with the second respondent. However, he did not cared to adduce any defence evidence. So his suggestion remains to be a suggestion as against the evidence of PW.1. 5. The dispute being as to in whose favour the cheque was issued, the question to be decided is whether the cheque was drawn in favour of the second respondent or whether it was drawn in favour of Sasi as alleged by the revision petitioner. Going by the evidence of PW.1 the courts below had concurrently found that Ext.P1 was drawn in favour of the second respondent whose name is Saji. In cross-examination of PW.1 it was suggested that the cheque was drawn in favour of Crl.R.P.No.3614 of 2009 4 Sasi.S. The answer is that it is written as Saji.S. It is basing upon the evidence of PW.1 and perusing Ext.P1, the courts below had concurrently found against the revision petitioner. Of course, going by the copy of Ext.P1, the possibility for reading the name as Sasi.S is also there. But in the light of the evidence on record especially in the absence of reply notice or any contra evidence, I find little reason to disturb the concurrent finding of fact in exercise of the revisional powers. Though the revision petitioner have got a case that he owed money to Sasi in whose favour the cheque was drawn, no document was produced or any evidence was let in to show that any amount was due to Sasi or that any amount was discharged to the said Sasi. So the contention that the cheque was not drawn in favour of the second respondent is devoid of merit. It appears that it is defence made out of a wrong reading of Ext.P1. The writing in Ext.P1 can be read as Saji, who is none other than the 2nd respondent. 6. The learned counsel had also argued that there is material alteration in Ext.P1 and it is evident by Ext.P1. A perusal of Ext.P1 would show that in figures there is over writing Crl.R.P.No.3614 of 2009 5 over figure '3' but on the words there is no any such over writing. The said argument was also urged before the courts below. The courts below had rightly declined to find in favour of the revision petitioner. Since the Bank had not objected on ground of any material alteration and that the corresponding word have no alteration, I find little reason to arrive a conclusion that the courts below had wrongly rejected the said contention. There is no material alteration. Courts below had duly considered all the contentions of the revision petitioner and rightly rejected. I find little reason to interfere with the finding of conviction. 7. Taking note that the revision petitioner is aged 44 years and that he is a contractor doing business and because of the holding of the bill, he was forced to face the prosecution, I find that he is entitled to a little leniency in sentence and that a sentence of imprisonment till rising of the court with fine would meet the ends of justice. In the result, this revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court and a fine of Rs.3,55,000/- Crl.R.P.No.3614 of 2009 6 with default clause as ordered by the trial court. The revision petitioner is granted six months time to pay the fine. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj.