IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2108 of 2008() ------------------------------------------- CRA.113/2008 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM ST.4839/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ ACCUSED ------------------------------ DEVADANAM, AGED 78. S/O. LASAR NADAR, POOVANVILA, THIRUPURAM.P.O, NEYYATINKARA. BY ADV. MR.R.T.PRADEEP RESPONDENT(S): RESPONDENTS/ STATE AND COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K. PREMACHANDRAN, FOREST QUARTERS, NO. 11 B 1/8, SOCIAL FORESTS COMPLEX, PTP, NAGAR, VATTIYOORKAVU.P.O, TRIVANDRUM. R1 BY PUBLIC PROSECUTOR MR.JAYAKRISHNAN R2 BY ADV. MR.K.SABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.2108 of 2008. = = = = = = = = = = = = = Dated this the 2nd day of December, 2009. O R D E R The second respondent herein prosecuted the revision petitioner before the Judicial Magistrate of the First Class- IV, Thiruvananthapuram in ST.No.4839/2005 alleging offence under Section 138 of the Negotiable Instruments Act with a pleading that on 18.11.2002 the revision petitioner borrowed a sum of Rs.2,28,300/- for the purpose of maintenance works of a school, of which the revision petitioner was the Manager and that in discharge of that liability a cheque dated 31.12.2004, which was marked as Ext.P1, was issued for the said amount drawn on Canara Bank, Neyyattinkara branch and that when Ext.P1 was sent for collection through Dhanalekhshmi Bank, Vazhuthacaud branch it was returned dishonoured for insufficiency of funds as evidenced by Ext.P2 memo dated 19.4.2005 and demanding discharge of the said liability a lawyer notice, as Crl.R.P.No.2108 of 2008. -: 2 :- evidenced by Ext.P3 dated 10.5.2005 was sent and that despite the acknowledgment, liability was not discharged, but caused a false reply. 2. The revision petitioner pleaded not guilty. He was sent for trial. On the side of the second respondent, he was examined as Pw1 and Exts.P1 to P6 were marked. When questioned under Sec.313 of the Crl.P.C. he had put up a defence that the second respondent had donated a sum of Rs.20,000/- and for the discharge of the liability Ext.P1 cheque was issued blank. On his side one witness was examined as Dw1. On appraisal of the evidence the trial court arrived a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for three months and to pay Rs.2,28,300/- as compensation to the 2nd respondent under Sec.357(3) of the Crl.P.C. In Crl.Appeal No.113/2006 by judgment dated 13.3.2008 the Addl.Sessions Judge, Adhoc-IV, Thiruvananthapuram confirmed the conviction. The Crl.R.P.No.2108 of 2008. -: 3 :- substantive sentence was reduced to one of imprisonment till rising of the court. The order to pay compensation was sustained. Assailing the above conviction and sentence as reduced in appeal, this revision petition was filed. 3. The fact that the cheque was issued by the revision petitioner is admitted. But the contention that was advanced is that the 2nd respondent proposed a candidate for admission to the school for which the revision petitioner demanded a sum of Rs.20,000/-. At the time when the amount was received it was assured that if admission to the candidate which he proposed was not effected, the amount would be refunded. According to the revision petitioner, the student got admission in another school and for the discharge of the said amount the cheque was issued. It is crucial to note that in the reply notice though there is mention that a small amount was collected from the second respondent, it was not cared to mention as to what exactly was the liability. Though it was contended that the cheque Crl.R.P.No.2108 of 2008. -: 4 :- was issued as a security, the revision petitioner did not care to adduce any evidence that the cheque was issued as a security. In attempt to substantiate the defence evidence he examined one witness as Dw1. According to Dw1, a cheque was issued by the revision petitioner in discharge of the said amount. Of course, it was mentioned that at the time when the cheque was issued the revision petitioner had stated that there was no amount in the bank and that the cheque would be returned as and when amount would be paid back. In cross-examination, the Dw1 was not in a position to mention as to for which student the admission was sought for. It was also revealed out that he is working as an agent for canvassing students for admission to the school run by the revision petitioner. If the evidence of Dw1 is taken in its face value, the revision petitioner had developed his case from Ext.P6 reply notice. Ext.P6 being a notice sent by a lawyer, I fail to find any reason for not mentioning the amount admitted by the revision petitioner Crl.R.P.No.2108 of 2008. -: 5 :- as a liability outstanding to the second respondent. In the above circumstance, it had to be concluded that the revision petitioner had no specific case. He had been developing the case from one stage to another. That being the materials on record, the failure of the revision petitioner to enter the witness box and adduce evidence is very material. Since the case advanced by him during trial was not pleaded in the reply notice, no sanctity can be given to the evidence of Dw1 or to the statement of the revision petitioner when questioned under Sec.313 of the Crl.P.C. 4. The learned counsel for the revision petitioner argued that there is wide gap between the date of demand and the issuance of the cheque. It was also argued that in the normal course, no prudent man would part with money without obtaining any document. So, according to the learned counsel, the second respondent could not be believed at all. The argument advanced by the learned counsel is devoid of merits. Even as per the statement of Crl.R.P.No.2108 of 2008. -: 6 :- the revision petitioner, the amount was advanced earlier and the cheque was issued much later. He has no case that at the time when the amount was advanced, the second respondent had demanded any document for the amount borrowed or advanced. The statement of the revision petitioner itself would show that the cheque was issued at a subsequent stage. He has no case that he gave any document when he got the amount. So, the argument advanced by the revision petitioner is devoid of any merit. 5. It was also argued by the learned counsel for the revision petitioner that the second respondent had admitted that he was in financial difficulties and to get over the same he had sold the properties and so it is not at all believable that such huge amount was advanced by the second respondent to the revision petitioner. At the time of cross- examination it wad deposed that he had made out money by borrowing from his friends and advanced to the revision petitioner who is running a school. That evidence also Crl.R.P.No.2108 of 2008. -: 7 :- appears to be believable. I find that the conviction is based upon cogent evidence. Regarding the sentence, no interference is necessary, since the sentence as modified in appeal is very lenient. In the result, this revision petition fails and it is dismissed. The revision petitioner is granted three months time to pay the compensation to the second respondent. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE. Kvs/