A. C. Thomas v. P. M. Thomas and State

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934** **Crl.Rev.Pet.No. 607 of 2007 ( ) ------------------------------CRA.38/2004 of ADDL. SESSIONS COURT (SPL. COURT), KOTTAYAM CC.371/2002 of J.M.F.C.,ERATTUPETTA** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **A.C.THOMAS, AIKARA HOUSE, THIDANADU P.O.** **BY ADVS.SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **-----------------------------------** **1. P.M.THOMAS, PULIKUNNEL HOUSE, THIDANADU P.O.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** ## **R2-BY P.P.SMT. SAREENA GEORGE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.S. GOPINATHAN, J.** ...................................................... Crl.R.P.NO.607 OF 2007 ...................................................... Dated this the 10[th] day of October, 2012 ## **O R D E R** The Judicial Magistrate of First Class, Erattupetta in C.C.No.371/2002, a prosecution launched by the first respondent, found the revision petitioner guilty for offence under Section 138 of the N.I.Act. Accordingly, he was convicted and sentenced to simple imprisonment for three months. He was further directed to pay Rs.1,25,000/-, the cheque amount as compensation to the 1[st] respondent. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.38/2004 before the Sessions Judge, Kottayam. But he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred. 2. I have heard Sri. Binu Paul, the learned counsel appearing for the revision petitioner. Perused the judgments and the evidence on record. 3. The 1[st] respondent launched the prosecution with a plea that the revision petitioner owed a sum of Rs.1,25,000/- : 2: ## Crl.R.P.NO.607 OF 2007 to him and in discharge of the liability Ext.P1 cheque was issued and when sent for collection, it was returned dishonoured for insufficient funds and that despite the notice demanding discharge, the liability was not discharged. 4. In support of the prosecution, the 1[st] respondent had given evidence as PW1. Exts.P1 to P5 were also marked. 5. The defence of the revision petitioner is that he had some money transaction with the brother of PW1, to whom two blank cheques were issued as security and misusing one of the cheques, the prosecution was launched and that there was no transaction between the revision petitioner and the 1[st] respondent. In support of the defence, Dws 1 to 5 were examined and the revision petitioner was examined as DW6. DW1, the brother of PW1, denied the so called issuance of blank cheque to him by the revision petitioner. So, the evidence of DW1 cuts the root of the defence. Dws 2 to 5 were examined to bring on record regarding the money transaction between the revision petitioner and DW1, there was some mediation in the presence of the Panchayat President and that certain amounts due to DW1were paid off. Regarding the so called discharge, absolutely there is no evidence. Whatever may be that, the evidence of DWs 2 to 5 would no : 3: ## Crl.R.P.NO.607 OF 2007 way significant because there is no whisper in their evidence regarding any mediation in respect of the alleged transaction between the revision petitioner and the 1[st] respondent. It is also significant to note that none of the witnesses had mentioned that Ext.P1 is a cheque said to have been given to DW1. Therefore their evidence is not relevant. 6. The revision petitioner as DW6 had reiterated his contention in his evidence. In cross examination it was revealed that alleging forgery of Ext.P1, the revision petitioner launched prosecution against the 1[st] respondent. That ended in acquittal. That acquittal also would go against the defence advanced by the revision petitioner. In the above circumstance, the defence evidence would no way controvert the evidence of PW1. 7. The learned counsel for the revision petitioner would further submit that mere signature in the cheque is not sufficient enough to canvass the presumption in favour of the 1[st] respondent and that irrespective of the admission of the signature, the 1[st] respondent is bound to establish that there was liability between the 1[st] respondent and the revision petitioner and in discharge of that liability the cheque was issued. The learned counsel in support of his argument relied upon the decisions of this Court in Jose v. Joy (2008 (3) KLT : 4: ## Crl.R.P.NO.607 OF 2007 512) and Saju N.I v. T.K. Paulose (2009 3 KHC 626). I have carefully gone through the law laid down in those decisions. But, I find that the facts of the case on hand have no bearing with the facts of the cases in the decisions referred. Here in this case, in the event Dws 1 to 6 were not examined, probably the revision petitioner would have some case to argue. But in the light of the evidence of DWs 1 to 6, the revision petitioner cannot now contend that Ext.P1 cheque was issued blank to DW1 or that the 1[st] respondent had committed any forgery of such cheque and prosecution was launched. However, I had critical scrutiny of the evidence of PW1. It is revealed out that the 1[st] respondent and the revision petitioner were close associates and there were so many transactions between them. In the above circumstance, plea of the 1[st] respondent that he had lent money without obtaining any proof cannot be disbelieved. So also issuance of Ext.P1 in the discharge of the liability cannot be disbelieved especially when the trial court which had the occasion to watch the demeanour of the witnesses disbelieved the defence evidence and believed PW1 whose evidence remains uncontroverted and supported by the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. I find nothing illegal, improper or erroneous : 5: ## Crl.R.P.NO.607 OF 2007 in the judgments impugned so as to be rectified in exercise of the revisional powers . The conviction under challenge is based upon cogent evidence and requires no interference. 8. Regarding sentence, I find that an ordinary money transaction between two close associates dragged the petitioner to face prosecution because of the failure in his business. Therefore, the revision petitioner is entitled to a little bit leniency and that a sentence of imprisonment till the rising of the court and a fine of Rs.5,000/- with a direction to pay compensation as ordered by the trial court would meet the ends of justice. In the result, this revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till the rising of the court and a fine of Rs.5,000/-. In default of non payment of fine, the revision petitioner shall undergo simple imprisonment for four weeks. Order to pay compensation with default sentence as ordered by the trial court is sustained. The revision petitioner is directed to surrender before the trial court which shall see the execution of sentence and report compliance. The amount, if any, already : 6: Crl.R.P.NO.607 OF 2007 deposited shall be given credit to. One month time is granted to the revision petitioner to pay the fine and compensation amount. ## **Sd/-** **P.S. GOPINATHAN, JUDGE.** Cl /true copy/ P.S. to Judge : 7: Crl.R.P.NO.607 OF 2007