IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 323 of 2010()
1. KOMALESWARAN,S/O.R.S.MANI,VALLI NIVAS,
... Petitioner
Vs
1. NISSAR,S/O.NAVIRU,BISMILLA HOUSE,
... Respondent
2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :28/01/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.323 of 2010
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Dated this the 28th day of January, 2010
ORDER
This revision petition is prefrred against the judgment dated
29.10.2009 in Crl.A.756/2008 of the Sessions Court, Palakkad by
which the conviction and the sentence, passed by the Judicial First
Class Magistrate Court-III, Palakkad, against the revision petition
under Section 138 of the Negotiable Instruments Act, were confirmed.
2. The case of the complainant is that the revision
petitioner/accused borrowed an amount of Rs.30,000/- from him and
towards the discharge of the said liability, a cheque dated 3.1.2007
for an amount of Rs.30,000/-, was given to the complainant, which
when presented for encashment has dishonoured for want of fund in
the account maintained by the accused. Thus according to the
complainant, the accused has committed the offence punishable under
Section 138 of the Negotiable Instruments Act.
3. During the trial of the case an affidavit was filed by the
complainant, but he was not cross examined. Apart from the affidavit
Exts.P1 to P5 documents were produced during the trial. No evidence
either documentary or oral were adduced by the accused. On the
basis of the available materials, the trial court found that the accused
is guilty of the offence charged. Accordingly, the trial court convicted
the accused under Section 138 of the Negotiable Instruments Act and
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sentenced him to pay a fine of Rs.30,000/- and the default sentence
was fixed as one month. It is ordered that the fine amount if realised
shall be given to the complainant. Though the accused/revision
petitioner has filed Crl.A.756/2008 before the Sessions Court, the
order of conviction and sentence passed by the trial court is
confirmed in the appeal and accordingly the appeal was dismissed.
4. The learned counsel for the revision petitioner submitted that
the petitioner could not cross examine the complainant and therefore,
the case may be remanded to the trial court for cross examining the
complainant. In view of the facts and circumstances involved in the
case, I find no reason to interfere with the orders of the court below.
It is a fact beyond dispute that on receiving the memo from the bank
about dishonour of cheque, the complainant had sent a statutory
notice to the accused which was received by him as evidenced by the
documents produced. But the accused/revision petitioner did not care
even to send a reply to the said notice. Though the complainant filed
a detailed affidavit elaborating the transaction and the liability of the
accused, the accused did not cross examine the complainant. The
learned counsel for the petitioner submits that the complainant could
not be cross examined because the accused was absent. The above
submission cannot be entertained even for a moment. The accused
was defended by the counsel and for cross examining the complainant
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atleast based upon the available facts which are within the knowledge
of the counsel for the accused, the presence of the accused not at all
necessary. It is also pertinent to note that, no list of witness was
produced and no documents are also produced by the defence to
substantiate the plea, if any. Only at the stage of 313, the accused set
up a plea that the accused had no acquaintance with the complainant
and the case was filed misusing the cheque given, when a sum of
Rs.5,000/- was borrowed. From the above case of the defence itself it
is clear that, there is no dispute regarding handing over of the cheque
which bearing the signature of the accused. Of course, regarding the
amount, there is a dispute. But the complainant has established his
case by producing relevant documentary evidence and by filing an
affidavit and the contents of the affidavit remain as uncontroverted.
In this juncture, it is also relevant to note that the statutory notice
sent by the complainant was received by the accused on 16.2.2007,
but no reply was given. No evidence whatsoever was adduced to
substantiate the defence eventhough such plea was feeble and
unacceptable. It is under the above circumstances, the trial court as
well as lower appellate court found that the complainant has
established the case against the accused beyond doubt.
5. As per the averments in the complaint and the materials on
record, the cheque in question was dishonoured on 27.1.2007 and
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accordingly, the trial court found that the accused is guilty of the
offence under Section 138 of the Negotiable Instruments Act and
passed the judgment as early as on 12.11.2008. It is also relevant to
note that, inspite of such finding no sentence of imprisonment was
awarded but only a fine of Rs.30,000/- was imposed, because the
cheque in question was for an amount of Rs.30,000/-. Suffice to say no
sentence of imprisonment was awarded. The default sentence is only
for one month. The appellate court has also found that the sentence
imposed against the accused/revision petitioner is not heavier or
excessive.
6. In the light of the above facts and circumstances of the case,
I find no reason to interfere with the orders of the court below and
accordingly, the conviction and sentence passed by the court below
are confronted.
Revision Petition is accordingly dismissed.
V.K.Mohanan, Judge
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