IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1557 of 2010()
1. ABDUL VAHID, S/O.ALIYARU KUNJU,
... Petitioner
Vs
1. K.M.ZAMEER, S/O.HAMEEDKUTTY,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.RASHEED C.NOORANAD
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :18/05/2010
O R D E R
V.K.MOHANAN, J.
-------------------------------
Crl. R.P.No.1557 of 2010
-------------------------------
Dated this the 18th day of May, 2010.
O R D E R
The revision petitioner, who is the accused in a prosecution
for an offence punishable u/s.138 of Negotiable Instrument Act,
challenging his conviction and sentence imposed against him by
the judgment dated 3.12.2008 in C.C.No.406/08 of the Court of
Judicial First Class Magistrate, Kayamkulam and the judgment
dated 12.1.2010 in Crl.Appeal No.622/2008 of Additional
Sessions Judge Fast Track Court (Ad Hoc), Mavelikkara.
2. The case against the revision petitioner/accused is that,
he had borrowed an amount of Rs.1,50,000/- from the
complainant and towards the discharge of the said debt, he had
issued Ext.P1 cheque and the said cheque when presented for
encashment was dishonoured due to insufficiency of fund in the
account of the accused. Hence the above case was instituted
and during the course of the trial, the complainant adduced his
evidence consists of oral testimony of Pws.1 to 3 and
documentary evidence marked as Exts.P1 to P6. From the side
Crl. R.P.No.1557 of 2010
2
of the defence, DW1 was examined and exhibits were marked
as X1 and X2. The trial court as well as the lower appellate
court found that the accused is guilty u/s.138 of NI Act.
3. I have heard the learned counsel appearing for the
revision petitioner. The learned counsel submitted that, in case
this court is not inclined to interfere in the matter, the revision
petitioner may be granted some time to make the payment, as
ordered by the lower appellate court.
4. I have gone through the judgment of the trial court as
well as the lower appellate court. The case of the complainant
has fully established by the evidence adduced by the
complainant. Beside the evidence of the complainant, who was
examined as PW1, Pws.2 and 3 were also examined to
substantiate the case of the complainant. Exts.P1 to P6,
documentary evidences, also establish the case of the
complainant. The revision petitioner was not having a case
that, he had not received the lawyer notice issued by the
complainant. When PW1 was examined, it was suggested to
Crl. R.P.No.1557 of 2010
3
him that, Ext.P1 cheque was given in blank to one Nishad and
the said Nishad handed over the same to the complainant and
the accused had handover the cheque only to Nishad. So,
according to the accused there was no transaction between
himself and the complainant. But when the accused was
questioned u/s.313 Cr.P.C., he put forward an entirely different
case and stated that the complainant had given an amount to
the said Nishad for the purpose of arranging a job for the wife of
the complainant and at that time, as a security for the said
transaction, the complainant had insisted for a cheque and as
such he gave a cheque to the said Nishad, as a person known
to both the parties and according to the defence, the said
cheque had misused by the accused in this case. The trial
court after elaborate consideration of the materials and
evidence on record found that, the story put forward by the
accused is unbelievable. The lower appellate court has also
endorsed the finding of the trial court. Going by the judgments
of both the trial court as well as the lower appellate court, it can
Crl. R.P.No.1557 of 2010
4
be seen that the complainant has established his case against
the accused/revision petitioner. But though the defence denied
the transaction claimed by the complainant, as between the
complainant and the accused, no evidence was adduced
atleast to probabilise the case of the defence. The factual
finding arrived on by the trial court that the story put forward by
the accused is unbelievable, seems to be correct. Therefore no
interferance is warranted.
5. The learned counsel prayed that some time may be
granted to make the payment. Having regard to the facts and
circumstances involved in the case, I am of the view that by
giving three months time to make the payment, the interest of
justice can be saved.
In the result, this criminal revision petition is dismissed
confirming the conviction and sentence, as ordered by the lower
appellate court and the order for paying a sum as
compensation of Rs.1,50,000/- to the complainant u/s.357(3) of
Cr.P.C, is also confirmed. The default sentence fixed by the
Crl. R.P.No.1557 of 2010
5
lower appellate court also confirmed. Accordingly, the revision
petitioner is directed to appear before the trial court on
18.8.2010 to receive the sentence and to pay the compensation
as directed above. If there is any default on the part of the
revision petitioner, in appearing before the court and making
the payment towards compensation as directed above, the trial
court can initiate coercive steps against the revision petitioner,
for executing the sentence and realisation of the compensation
amount.
V.K.MOHANAN,
Judge.
ami/