IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 Crl.Rev.Pet.No. 2973 of 2009() ------------------------------ CRA.577/2006 of I ADDL. SESSIONS COURT, KOLLAM CC.1349/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- V.N.PURUSHOTHAMAN POTTY, SREE ILLOM, SOUTH MURI, THAZHAVA VILLAGE, KARUNAGAPILLY, KOLLAM DISTRICT. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. VASUDEVAN POTTY, NARAYANA NALLOOR ILLOM, KADATHOOR MURI, THAZHAVA VILLAGE, KARUNAGAPPILLY, KOLLAM DISTRICT. 2. STATE OF KERALA REP. BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM SRI.CIBI THOMAS FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. = = = = = = = = = = = = = == = = Crl.R.P.No.2973 of 2009 = = = = = = = = = = = = = = = = = Dated, this the 2nd day of March, 2010 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C., the petitioner who was the accused in C.C.No.1349 of 2002 on the file of the J.F.C.M, Karunagappally challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs.1,00,000/-. The compensation ordered by the lower appellate court is Rs.1,00,000/-. 2. Heard both sides. 3. The learned counsel appearing for the Revision Petitioner made the following submissions before me in support of the revision:- The revision petitioner had discharged the entire liability pursuant to the issuance of the statutory notice as evidenced by Ext.D1 receipt to which the complainant examined as PW1 has affixed his signature. The revision petitioner has produced before this Court the passbook of the District Co-operative Bank, Karunagappally as well as the acknowledgement card showing the receipt by PW1 of the notice issued by the Crl.R..P. No. 2973/2009 -:2:- revision petitioner to the complainant's counsel on 11.9.2001. In the light of the decision of J.Durgeswar Reddy and another v. State of Andra Pradesh and Another (1997(3) Crimes 325(A.P)), these two documents are to be received in evidence and the revision petitioner is entitled to an opportunity to substantiate his contention regarding discharge. 4. I am afraid that I cannot agree with the above submissions. The proceedings being quasi civil in nature, the burden was on the revision petitioner to substantiate the discharge pleaded by him. It is pertinent to note that both the courts below have considered Ext.D1 to hold that the said Exhibit is not a document which can be accepted as proof of the alleged discharge. PW1/complainant had disputed his signature in Ext.D1 receipt. It is significant to remember that the revision petitioner did not send a reply to the statutory notice, much less produce a copy of the same. He did not mount the witness-box to speak in terms of the defence set up by him. DW1, who was allegedly a witness to Ext.D1, was not believed by the courts below, since that witness was not able to answer the questions put to him during the cross- examination. The reason for the petitioner avoiding the witness- box speaks volumes. The petitioner has not given any acceptable reason as to why this Court should receive the documents as Crl.R..P. No. 2973/2009 -:3:- additional evidence by resort to Section 391 Cr.P.C. The acknowledgement card shows that the addressee received the letter on 11.9.2001. If the petitioner was vigilant enough, he could have produced the same at least before the lower appellate court. That was also not done. That apart, the copy of the letter which was allegedly sent to the complainant's advocate is still not forthcoming. Under these circumstances, this Court is not inclined to accept Crl.M.A. No.847/2010 filed by the revision petitioner for producing the aforesaid additional evidence. The said application is dismissed. 5. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the Act. and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. This Court sitting in the rarefied revisional jurisdiction will be loath to interfere with the findings of fact Crl.R..P. No. 2973/2009 -:4:- recorded by the courts below concurrently. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 6. What now survives for consideration is the legality of the sentence imposed on the revision petitioner. In the light of the decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. I am, therefore, inclined to modify the sentence to one of fine only. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs.1,10,000/- (Rupees One lakh ten thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within six months from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period he shall suffer simple imprisonment for three months by Crl.R..P. No. 2973/2009 -:5:- way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated this the 2nd day of March, 2010. V. RAMKUMAR, JUDGE. sj