IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 505 of 2006()
1. HUSSAIN HAJI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. P.K.ANILKUMAR,
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.SANTHARAM.P
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :08/03/2010
O R D E R
P.S.GOPINATHAN.J
--------------------------------------
Crl.R.P.NO. 505 OF 2006
----------------------------------------
Dated this the 8th day of March, 2010.
O R D E R
The revision petitioner is the accused in CC No.269/2002 on
the file of the Judicial Magistrate of the First Class, Perambra. The
second respondent is the complainant. The second respondent
prosecuted the revision petition alleging offence u/S.138 of the
Negotiable Instruments Act. The revision petitioner pleaded not
guilty. Hence, he was sent for trial. On the side of the second
respondent, he was examined as PW1 and Exts.P1 to P8 were
marked. After closing the evidence for the prosecution, the revision
petitioner was questioned u/S.313 of the Code of Criminal
Procedure. He denied the incriminating evidence and contended
that the second respondent was an employee of one Abdul Nassar.
Abdul Nassar requested the revision petitioner, who was running a
Travel Agency, to arrange Visa to the second respondent and
another worker. Accordingly, he requested one Muhammed Iqbal
to arrange Visa for which Abdul Nassar paid Rs.40,000/- to
Muhammed Iqbal. But Muhammed Iqbal did not arrange the Visa.
On enquiry, it was known that Muhammed Iqbal was no more.
C.R.R.P.NO. 505 OF 2006 2
Knowing that, the revision petitioner was asked to return the amount
for which he was not agreeable. The second respondent and his
friends trespassed to the house of the revision petitioner and took
away valuable documents including the cheque leaves and
manipulating the cheque leaf so obtained, the prosecution was
launched. No defence evidence was adduced. The learned
Magistrate, on appraisal of the evidence, arrived a finding of guilty.
As a result, the revision petitioner was convicted and sentenced to
Simple Imprisonment for 3 months. He was further directed to pay
Rs.25,000/- as compensation to the second respondent. Though the
revision petitioner filed Criminal Appeal No.119/2004, he was
unsuccessful. Assailing the legality, correctness and propriety of the
above conviction and sentence as confirmed in appeal, this revision
petition was filed.
2. The second respondent, who was examined as PW1, had
deposed that on 6.9.2001, the revision petitioner borrowed
Rs.25,000/- and that when demanded back the amount he promised
that a Visa would be arranged to the second respondent to go
abroad for employment. But the revision petitioner did not arrange
the Visa. So, the revision petitioner was asked to return the money.
C.R.R.P.NO. 505 OF 2006 3
Thereupon, the revision petitioner issued Ext.P1 cheque dated
20.12.2001 drawn on State Bank of Travancore, Parappanangadi
Branch. When sent for collection, Ext.P1 was returned dishonored
for insufficiency of funds along with Ext.P2 and P3 memos.
Demanding discharge of the liability, a lawyer notice dated 29.1.2002
was caused. Ext.P4 is the copy of the notice , Ext.P5 and P6 are
the postal receipt and acknowledgment card. Though the revision
petitioner acknowledged the notice on 1.2.2002, the liability was not
discharged. Neither any reply was caused. Though PW1 was
subjected to searching cross examination no material was disclosed
to disbelieve him. The story of the defence that the second
respondent who was an employee of Abdul Nassar advanced
amount to Muhammed Iqbal for arranging Visa and that the revision
petitioner was only a mediator and that when Muhammed Iqbal failed
to arrange the Visa, the revision petitioner was asked to return the
amount and that the second respondent and his friends trespassed
to the house of the revision petitioner and forcibly obtained the
cheque leaves and manipulating the cheque leaf so obtained, the
prosecution was launched remain not established. Other than the
suggestion made when questioned u/S.313 of the Code of Criminal
C.R.R.P.NO. 505 OF 2006 4
Procedure no evidence was let in by the revision petitioner to
substantiate the defence. Neither any preponderance of probability
of the defence version was disclosed. The result is that the defence
version remains to be a suggestion not supported by any defence. In
the event the defence is true, he would have retorted to the notice
demanding discharge of liability. The silence of the revision
petitioner, after acknowledging the notice demanding discharge of
liability, looms large. In the above circumstances, I find that the
courts below had correctly believed the evidence of PW1 and rightly
arrived at a conclusion of guilty. The conviction under challenge is
unassailable.
3. Having regard to the fact that the revision petitioner is now
aged 58 years and that an ordinary money transaction had forced
him to undergo prosecution, I find that the revision petitioner is
entitled to a little leniency in sentence and that sentence of
imprisonment till rising of the court and a fine of Rs.35,000/- would
meet the ends of justice.
In the result, revision petition is allowed in part. While
confirming the conviction, the sentence is reduced to imprisonment
till rising of the court and a fine of Rs.35,000/- (Rupees Thirty five
C.R.R.P.NO. 505 OF 2006 5
thousand only). In default of payment of fine, the revision petitioner
shall undergo Simple Imprisonment for 4 months. The fine, if
realised, shall be paid to the second respondent as compensation.
The revision petitioner is granted one month time to remit the fine. Till
then, the bail bond executed by the revision petitioner shall remain in
force.
P.S.GOPINATHAN,JUDGE.
pm
C.R.R.P.NO. 505 OF 2006 6