IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1027 of 2000()
1. Y.B.YAHIA
... Petitioner
Vs
1. P.M.BAVA
... Respondent
For Petitioner :SRI.TOM JOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/04/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO.1027 OF 2000 (A)
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Dated this the 1st day of April, 2009
O R D E R
Challenge in the revision is against the concurrent
verdict of guilty rendered against the revision
petitioner/accused for the offence punishable under Section
138 of the Negotiable Instruments Act, for short the ‘N.I.Act’.
The 1st respondent filed a complaint against the revision
petitioner for the offence under Section 138 of the N.I.Act.
The accused pleaded not guilty. The learned Magistrate, after
trial, found him guilty of the offence and convicted him
thereunder, sentencing him to undergo simple imprisonment
for six months and to pay a fine of Rs.5,000/- with default term
of simple imprisonment for three months more. In appeal, the
Sessions Judge confirmed the conviction and sentence.
Questioning the legality, propriety and correctness of the
conviction and sentence, the accused has preferred this
revision.
CRL.R.P.1027/00 2
2. The case of the complainant is that the accused
collected Rs.65,000/- from him promising to secure a visa for
his daughter, to get employment in a gulf country. When the
promise was honoured only in its breach, and pursuant to
demand made, the accused issued Ext.P1 cheque for the sum,
promising its encashment on presentation in due course. The
cheque presented, was, however, dishonoured due to
insufficiency of funds in the account of the accused. Statutory
notice issued intimating dishonour was acknowledged but not
responded with payment. The accused issued Ext.P7 reply
notice, according to the complainant, raising untenable
contentions. Complainant thereupon launched prosecution
against the accused for the offence under Section 138 of the
N.I.Act.
3. The accused on appearance, pleaded not guilty when
the particulars of the offence were made known. Complainant
examined three witnesses including himself as PW1 and got
marked Exts.P1 to P8 to prove his case. During the course of
CRL.R.P.1027/00 3
cross examination of the complainant, examined as PW1, and
also when questioned under Section 313 of Cr.P.C.,
maintaining his innocence, the accused set up a defence that
the complainant and several others including himself were
duped by one Gopalakrishnan with false promises of securing
visas to gulf country. It was his case that the complainant and
his henchmen, after keeping him in duress, and exerting
undue influence and coercion, compelled him to open an
account in the Catholic Syrian Bank and, then, fraudulently
obtained Ext.P1 cheque from him. Later presenting that
cheque, which had been obtained by fraud and coercion, and
getting that instrument dishonoured, a false case had been
foisted against him on baseless allegations. In support of the
defence canvassed, the accused examined three witnesses
including himself as DWs.1 to 3 and got marked Exts.D1 to D5.
4. The learned Magistrate, after appreciating the
materials produced, found the case of the complainant credit
worthy and the defence set up by the accused unworthy of any
merit. Being satisfied from the materials tendered by the
CRL.R.P.1027/00 4
complainant that the accused had committed an offence under
Section 138 of the N.I.Act, the learned Magistrate convicted
him thereunder, sentencing him as indicated earlier.
Sessions Judge, in appeal, after reappreciation of evidence,
approved the finding arrived by the learned Magistrate and
confirmed the conviction and sentence without any
modification.
5. I heard the learned counsel for the accused. Though
respondent had been served with notice, he has not entered
appearance. Assailing the conviction, the learned counsel for
the accused urged before me that the totality of the facts and
circumstances presented in the case unerringly demonstrate
that the defence version set up by the accused is more
probable; but, unfortunately, both the courts below have
discarded material circumstances brought out in the case
concluding that the accused has not established his defence
with legal evidence. The complainant, examined as PW1 had
denied the suggestive questions put forth by the defence
counsel in support of the defence version, but the answers
CRL.R.P.1027/00 5
given by him, if read as a whole, according to the learned
counsel for the accused, lend sufficient assurance to reach a
conclusion that the defence version that one Gopalakrishnan
had duped the complainant and several others including the
accused, cannot be brushed aside as meritless. The evidence
of DWs.1 and 2, two witnesses examined by the accused, to
substantiate his defence taken along with his sworn testimony
as DW3, it is submitted by the counsel, is more than sufficient
to reach a conclusion that the defence version is probable.
The non-examination of Gopalakrishnan, which, according to
the counsel, was taken serious exception by the trial court was
not on account of any fault of the accused but solely for the
reason that the steps taken to procure his presence through
the court were not successful. His non-examination was on
account of reasons beyond the control of the defence, and that
being so, he cannot be found fault with for not examining that
witness to substantiate his defence version. Lastly, a fervent
plea was also made by the counsel for reducing the sentence
in case the conviction is found sustainable submitting that the
accused is bedridden due to cancer.
CRL.R.P.1027/00 6
6. I have perused the records of the case giving
consideration to the submissions made by the counsel. First
and foremost, it has to be pointed out that a revisional court
exercise its jurisdiction as a supervisory court, to correct the
illegality or irregularity, if any, committed by the inferior
courts. The primary object of having revisional jurisdiction
over the subordinate courts is to avoid failure of justice. A
revisional court in exercise of its superintendence cannot
reappreciate the evidence to examine the correctness of the
finding arrived at by the inferior courts unless it is shown that
the finding is so perverse and could not have been arrived on
the materials produced in the case. The trial court as well as
the appellate court after analysing the evidence tendered in
the case, had concurrently formed a conclusion that the
accused has committed the offence under Section 138 of the
N.I.Act. The learned Magistrate, who had the opportunity to
watch the demeanor and deportment of the witnesses
especially the complainant examined as PW1 and the accused
examined as DW3, found the sworn testimony of the
CRL.R.P.1027/00 7
complainant reliable, trustworthy and credible and that of the
accused unworthy of credence. The Sessions Judge, after
reappreciating the evidence in appeal, approved the
conclusion reached by the learned Magistrate that the
complainant has substantiated his case that Ext.P1 cheque
was issued by the accused to discharge a liability arising out
of a transaction, where under he had promised to secure a
visa for his daughter to get employment in a gulf country.
Ext.P1 cheque was obtained keeping him under duress and
exerting coercion and undue influence, was the case set up by
the accused to deny his liability under that instrument after its
dishonour. Before the cheque was presented for
enacashment, the accused has not approached any law
enforcing agency, leave alone the police, to seek redressal of
his grievance, if at all there is any grain of truth in the case
set up by him that Ext.P1 cheque had been obtained keeping
him under duress. Needless to point out that the bank will not
open an account in the name of the accused unless his identity
is established and he appears in person before the concerned
bank officer. So much so, the defence case canvassed by the
CRL.R.P.1027/00 8
accused that an account in Catholic Syrian Bank was opened
keeping him under duress can be received only with a pinch of
salt. As rightly pointed out by the learned Magistrate there
was no merit in the defence case pleaded, as nothing
prevented the accused in giving advance instructions to the
bank not to honour the instrument. No such step was taken by
the accused. He did not approach the police or the court with
a complaint that he had been kept under duress and by
exerting coercion, the complainant had collected Ext.P1
cheque from him. The proved facts and circumstances
involved in the case demonstrate in unmistakable terms that
the defence case pleaded that Ext.P1 cheque was obtained
from the accused keeping him under duress, by the
complainant, deserves to be taken note of only for its
rejection. The materials produced by the accused as Exts.D1
to D5, at the most, would show that he had some transaction
with one Gopalakrishnan in obtaining visa, after collecting
substantial sums from several persons. Whether he acted as
an agent of Gopalakrishnan in collecting of money to secure
visa, is immaterial in the present case, where the only
CRL.R.P.1027/00 9
question to be considered is whether Ext.P1 cheque executed
by the accused had been duly executed by him for discharge of
a debt or liability due to the complainant. The case of the
complainant that it was the accused who had collected the
money, to secure a visa for his daughter, was found believable
and acceptable to the learned Magistrate and also to the
Sessions Judge on the materials produced in the case. After
going through the records, I find no reason to take a different
view. When the demand for the money advanced was made,
as the accused failed to secure the visa as promised, Ext.P1
cheque was issued and subsequently on its presentation, it
was dishonoured due to insufficiency of funds in the account
of the accused is the case of the complainant. The case so
pleaded by the complainant had been proved by the materials,
and the defence raised by the accused to deny his liability was
found unworthy of any value. In such circumstances, the
conviction founded against the accused for the offence under
Section 138 of the N.I.Act can only be held to be proper, valid
and correct, and it deserves to be upheld. I do so.
CRL.R.P.1027/00 10
7. Now on the question of sentence, having regard to the
submissions made by the learned counsel for the accused, that
the accused is now bedridden with serious ailment cancer,
which may be true, and also taking into account the nature of
the offence with which he was convicted, under Section 138 of
the N.I.Act, I find his incarceration for a term is not necessary
to meet the ends of justice. True, false promises made for
collecting money making representation that job visa would be
secured, and later issuing cheques as repayment which on
presentation are dishonoured, had to be dealt with deterrent
punishment. However, as the submission of the counsel
indicate that the accused is suffering from a serious ailment,
which I find no reason to doubt, I am inclined to show
indulgence in the matter of punishment. So much so, the
sentence is modified, directing the accused to undergo
imprisonment till the rising of the court and to pay
compensation of Rs.75,000/- to the complainant under Section
357 (3) of the Cr.P.C. within two months from the date of this
order. In default of payment of compensation within the time
stipulated, the accused shall undergo simple imprisonment for
CRL.R.P.1027/00 11
three months. The accused shall appear and his sureties to
produce him before the Judicial First Class Magistrate Court,
Kochi, on 1st June, 2009, and the learned Magistrate shall
execute the sentence as directed.
Revision is partly allowed.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO.1027 OF 2000 (A)
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O R D E R
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1st April, 2009