IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Crl.Rev.Pet.No. 609 of 2005(A) ------------------------------ CRA.448/2002 of IST ADDL.SESSIONS COURT, KOZHIKODE CC.785/1997 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- V.P.PRASAD S/O. RARICHAN, VADAKKEPUNATHIL HOUSE, MAKKADA, KOZHIKODE. BY ADV. SRI.K.B.GANGESH SRI.ANIL GEORGE RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. SUBHAGINI W/O. I.C.VIJAYAN, ITHANKANDY HOUSE, EDAKKAD AMSOM DESOM. 2. STATE, REP.BY THE GOVERNMENT, PLEADER AND PUBLIC PROSECUTOR. ADV. SRI.K.A.SALIL NARAYANAN FOR R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON22/2/2011 , THE COURT ON 3/6/2011 PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P.NO. 609 OF 2005 ======================= Dated this the 3rd day of June 2011 ORDER The revision petitioner is the accused in C.C.No.785/1997 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode. He was convicted and sentenced to undergo simple imprisonment for one year for the offence under Section 138 of the Negotiable Instruments Act by the learned Magistrate as per judgment dated 5/9/2002 in C.C.No.785/1997. The petitioner challenged the conviction and sentence by preferring appeal before the Sessions Court, Kozhikode. The learned Additional Sessions Judge as per judgment dated 27/1/2005 in Crl.Appeal No.448/2002 confirmed the conviction and modified the sentence to imprisonment till rising of court and to pay Rupees two lakhs as compensation to the first respondent and in default to undergo simple imprisonment for four months. The concurrent finding of guilty and conviction of the revision petitioner for the offence CRRP 609/2005 2 under Section 138 of the Negotiable Instruments Act and the sentence imposed thereunder has been challenged by the revision petitioner/accused before this Court by filing this revision petition. 2. Heard the learned counsel for the revision petitioner, the learned counsel for the first respondent and the learned Public Prosecutor. 3. Ext.P3 cheque is admittedly drawn in the account of the revision petitioner maintained in State Bank of India. It is for Rs.2 lakhs and is dated 6/2/1997. The case of the first respondent/complainant was that the revision petitioner/accused had borrowed Rs.4 lakhs from the first respondent on 30/9/1995 from the house of the first respondent and promised to repay the same within two months. Thereafter, the revision petitioner executed a document on 10/5/1996 in a stamp paper with a request to allow four months' time to repay the amount. Subsequently on 28/11/1996, the revision petitioner approached the first respondent and issued two cheques dated 6/2/1997 for Rs.2 lakhs each. Cheque No.799317 drawn in the account of the revision petitioner maintained in State Bank of India when CRRP 609/2005 3 presented before bank for collection was dishonoured for want of sufficient fund in the account of the revision petitioner. The complainant sent a lawyer notice dated 15/5/1997 which was returned as unclaimed. The returned cover and the acknowledgment card were marked as Exts.P5 and P6 respectively. Copy of the lawyer notice dated 15/5/1997 and the postal receipt were marked as Exts.P7 and P8 respectively. The revision petitioner had not repaid the cheque amount and thereby committed the offence under Section 138 of the Negotiable Instruments Act. 4. The revision petitioner pleaded not guilty. The original complainant died on 5/9/1997 pending the case before the trial court. Thereafter, his wife was impleaded and she has given evidence as PW1 in accordance with the averments in the written complaint. Exts.P1 to P15 were marked on the side of the complainant. On the side of the revision petitioner/accused, DW1 was examined and Ext.D1 was marked. The learned Magistrate after considering the evidence held that Ext.P3 cheque was issued towards repayment of the amount borrowed by the revision petitioner from the original complainant and it was CRRP 609/2005 4 dishonoured for want of sufficient funds in the account of the drawer and the complainant has complied with all the statutory formalities before filing the complaint and found the revision petitioner/accused guilty and convicted and sentenced him for the offence under Section 138 of the Negotiable Instruments Act. The learned Ist Additional Sessions Judge, Kozhikode reappreciated the evidence and confirmed the conviction and modified the sentence as above mentioned. 5. The revision petitioner would contend that the courts below did not properly appreciated the evidence and it should have been found that Ext.P3 cheque was not issued towards repayment of any amount but only as security for some loan transaction between the accused and the original complainant. According to the revision petitioner, two blank cheques were given by him as security for the amount advanced by the original complainant and there was no legally enforceable debt between the complainant and the accused as the accused had already discharged his liability to the complainant. It is also contended that no proper notice under Section 138(b) proviso was issued to the revision petitioner and the alleged notice was returned as CRRP 609/2005 5 unclaimed, but the postman who served the intimation was not examined to prove that it was issued at the address of the accused. So the service of notice was also disputed by the accused. Thus the defence case was that the complainant foisted a false case against the accused by misutilising the blank cheques given by him as security after making material alterations therein for the amounts borrowed by the revision petitioner which had been returned to the complainant and there was no legally enforceable debt. To substantiate this contention, the revision petitioner/accused did not enter into the witness box and was not examined. The only documentary evidence produced on the side of the revision petitioner was Ext.D1 petition dated 24/12/1996 which was preferred by DW1, the father of PW1, to the Commissioner of Police, Calicut City wherein it was stated that the revision petitioner had borrowed Rs. 3 lakhs from his eldest son-in-law, I.C.Vijayan, the original complainant and repaid only Rs.50,000/- promising to repay the balance amount of Rs.2,50,000/-(two lakhs fifty thousand). Thereafter, the revision petitioner/accused in this case had absconded and it was prayed in Ext. D1 to take necessary action CRRP 609/2005 6 against the revision petitioner. This document,Ext.D1, was relied on by the accused for the purpose of proving his defence that it was mentioned in that complaint that some cheques were furnished by the accused as security towards the loan transaction between the accused and the original complainant. But Ext.D1 was preferred on 24/12/1996 by the father-in-law of the complainant at a time when his daughter, PW1 along with her husband,original complainant,were residing in a separate residence and that petition Ext.D1 was subsequently withdrawn by DW1 himself as revealed from Ext.P15 on 5/2/1997 that is during the lifetime of the original complainant who died only on 5/9/1997. It has come out from the evidence of PW1 that the original complainant had not authorised her father,DW1 to file Ext.D1 complaint and that DW1 at that time was not in good terms with his son-in-law as revealed from Ext.D1 itself. On going through the oral evidence of DW1 and Ext.D1 and Ext.P15, it was correctly found by the trial court that the defence failed to establish that Ext.D1 complaint was with respect to the transaction covered under Ext.P3 cheque. The evidence adduced by PW1, the wife of the original complainant who was impleaded CRRP 609/2005 7 in the present case after the death of the original complaint has proved that Ext.P3 cheque was issued to the original complainant by the revision petitioner who did not pay the amount covered under that cheque even after demand and thereby committed the offence under Section 138 of the N.I.Act. 6. The complainant had lodged the complaint after sending the statutory notice which was returned as unclaimed. PW2, the postmaster testified that he knew the addressee, the accused and the summons in the case was served on the accused in the same address. Thus, it is proved that the statutory notice was despatched by the complainant in the correct address of the accused. After considering this aspect, the trial court as well as the appellate court found that the contention of the defence that there was no proper notice as stipulated under Section 138 of the N.I.Act was without merit and was correctly rejected. 7. Ext.P9 is the lawyer notice issued by the accused to PW1, the wife of the original complainant on 23/2/2000 which would also prove that there were some money transactions between the accused and the deceased complainant. So it is for the accused CRRP 609/2005 8 to establish that the amount which he had borrowed from the original complainant were repaid by him but the cheques and other papers were not returned to the accused. Ext.P10 is the reply lawyer notice sent by PW1 to the accused on 13/3/2000 denying the entire contentions in Ext.P9 and reiterating the contentions in the complaint and also demanding the amount due under disputed cheque, Ext.P3. Subsequently, on 6/1/2001 PW1 was examined in this case. Even thereafter, the accused did not enter into the witness box to disprove the oral and documentary evidence tendered on the side of the complainant. The learned Magistrate and the learned Additional Sessions Judge appreciated the evidence and found that Ext.P3 cheque was issued towards the repayment of the amount of Rs.2 lakhs borrowed by the revision petitioner from the original complainant, deceased I.C.Vijayan. 8. The jurisdiction of revision is essentially the power and the duty of superintendence and correction. The crucial question to be considered is whether the findings of fact rendered by the courts below are so grossly erroneous or perverse as to warrant revisional interference. CRRP 609/2005 9 9. Evidence adduced in this case clearly established that Ext.P3 cheque was issued towards repayment of the amount borrowed and it was dishonoured for want of sufficient funds. The original complainant after complying with all the statutory formalities provided under Sections 138 and 142 of the Negotiable Instruments Act, preferred the complaint against the revision petitioner/accused. Therefore, the finding of guilty, conviction and sentence of the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act imposed by the appellate court in Crl.Appeal No.448/2002 are perfectly legal, regular and proper and warrants no interference and the same is confirmed. In the result, this Crl.revision petition is dismissed. Sd/- M.C. HARI RANI JUDGE ks. TRUE COPY P.S. TO JUDGE