IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2845 of 2007(E)
1. JANCY JOSEPH, W/O. JOSEPH,
... Petitioner
Vs
1. N.E.VARGHESE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.C.ANILKUMAR (KALLESSERIL)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/09/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 2845 OF 2007
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Dated this the 23rd day of September, 2008
O R D E R
The revision petitioner was concurrently convicted and
sentenced for the offence under section 138 of Negotiable
Instruments Act. First respondent filed the complaint
contending that towards repayment of Rs.1,50,000/- borrowed
by the petitioner, he issued Ext.P1 cheque drawn in his account
maintained in Kumarapuram branch of Kunnathunadu Service
Co-operative Bank and when the cheque was presented for
encashment, it was dishonoured for want of sufficient funds,
under Ext.P2, and first respondent sent Ext.P3 lawyer notice
demanding the amount covered by the cheque and it was served
on the petitioner on 7.7.2001 as stated in Ext.P5 letter issued by
Postmaster and petitioner failed to pay the amount and thereby
committed the offence under Section 138 of Negotiable
Instruments Act. Petitioner pleaded not guilty.
2. First respondent was examined as PW1 and Ext.P1 to
5 were marked. The case of the petitioner when questioned
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under section 313 of Code of Criminal Procedure was that he
had no transaction with the petitioner and Ext.P1 cheque was
not issued by him and it was not the cheque leaf issued to him in
account No.3668 of the Kunnathunadu Service Co-operative
Bank and the check leaf was forged by the first respondent after
printing the same and therefore he has not committed the
offence. He did not adduce any oral or documentary evidence.
Learned Magistrate on the evidence found him guilty and
convicted and sentenced him for the offence under section 138
of Negotiable Instruments Act to simple imprisonment for three
months and a compensation of Rs.1,51,000/- and in default
simple imprisonment for 45 days under section 357(3) of Code of
Criminal Procedure. Petitioner challenged the conviction and
sentence before Sessions Court in Criminal Appeal 1082 of
2005. Learned Additional Single Judge on re-appreciation of
evidence confirmed the conviction, but modified the substantive
sentence to simple imprisonment for one month confirming the
compensation. This petition is filed under section 397 and 401
of Code of Criminal Procedure.
3. When the revision petition was taken up on
CRRP2845/07 3
19.9.2008, there was no representation for the petitioner,
though first respondent was present. When the revision was
taken up today also, there was no representation for the
petitioner. Hence the revision is disposed after hearing the
learned counsel appearing for first respondent and on perusing
the records.
4. The contention taken in the revision petition is that
Courts below did not properly appreciate the evidence and
sufficient opportunity was not granted to adduce defence
evidence. It was contended that petitioner has specifically
contended that Ext.P1 cheque was not issued in the cheque book
issued to the petitioner in his account and it is a forged cheque
created by first respondent after fraudulently printing the
cheque book and an opportunity should have been granted to
prove the case.
5. The records of the learned Magistrate show that
evidence of the complainant was closed on 16.7.2005 after
examination of PW1 and the case was posted for questioning the
accused under section 313 of Code of Criminal Procedure and he
was questioned on 9.8.2005, on which day, in addition to the
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answers recorded by the learned Magistrate, petitioner had filed
a separate written statement contending that the cheque leaf
was not the one issued to him and it was fraudulently created by
first respondent. The proceeding paper shows that summons
was issued to the witnesses in the witness list through the
petitioner and it was posted to 31.8.2005 and petitioner filed
M.P.2870 of 2005 for permission to examine himself as witness,
under section 315 of Code of Criminal Procedure. The
proceedings on 31.8.2005 shows that petitioner submitted that
he is not pressing the petition filed under section 315 of Cr.P.C.
and sought time for production of the documents by the witness.
The Secretary of the Co-operative Society was summoned to
produce the Cheque Issue Register to show the details of the
cheque book issued to the petitioner in his account in 3668. On
18.10.2005, the witness namely the Secretary in charge of the
Society appeared and filed a statement before the Court to the
effect that the cheque issue Register was produced in C.C.262 of
2001 and is not in the custody of the Society and therefore it
cannot be produced by the witness. The records show that the
case was again adjourned for petitioner to take steps and on
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22.11.2005 evidence was closed as no further steps taken.
Petitioner thereafter filed M.P.3911 of 2005 under section 311
of Code of Criminal Procedure to re-open the evidence to enable
him to produce the Cheque Issue Register relating to account
No.3668. Learned Magistrate dismissed the application and
thereafter arguments were heard and petitioner was convicted.
In such circumstances, it cannot be said that petitioner was not
given sufficient opportunity to prove his case. At least when the
witness filed a statement before the Court to the effect that the
register was produced in C.C.262 of 2001, petitioner could have
filed an application to call for the records from that case, if in
fact the document is necessary to prove his case. As petitioner
did not take any steps and sufficient opportunity was granted, I
do not find any reason to interfere with the conviction on the
ground that opportunity was not granted to him.
6. The learned Magistrate and learned Sessions Judge
on appreciation of evidence of PW1 found that Ext.P1 cheque
was issued towards repayment of the amount payable by the
petitioner to the first respondent and it was dishonoured for
want of sufficient funds. Ext.P2, the dishonour memo issued by
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the bank shows that cheque was dishonoured for insufficient
funds and not for the reason that the cheque was not the one
issued in that account. If in fact Ext.P1 cheque was not issued
to the petitioner in his account No.3668, as contended by the
petitioner the bank would have dishonoured the cheque on that
ground. The fact that Ext.P1 cheque was dishonoured only for
want of sufficient funds falsify the defence case that it was not a
cheque from the cheque book issued to the petitioner. The
evidence establishes that no reply was also sent to the notice
demanding payment. If in fact Ext.P1 cheque was not issued by
petitioner and that too was not a cheque issued in the account
maintained by him, at least when Ext.P3 notice was received by
the petitioner, he would have sent a reply stating that it is not
the cheque issued by him and it is not the cheque issued to the
petitioner from the Bank and he is not liable to pay any amount.
The conspicuous failure to send a reply to the notice also
strengthens the case of PW1 that it was issued towards
discharge of an existing liability. In such circumstances,
conviction of the petitioner for the offence under section 138 is
perfectly legal and warrants no interference.
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7. Then the only question is with regard to the sentence.
Learned Sessions Judge modified the sentence to simple
imprisonment for one month in addition to the compensation
awarded by the learned Magistrate. Interest of justice will be
met if the substantive sentence is reduced to imprisonment till
rising of Court and compensation is modified to a fine of
Rs.1,55,000/- and in default, simple imprisonment for one
month. On realisation of the fine amount, Rs.1,51,000/- is to be
paid to first respondent as compensation.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-