BaburaJ Thonoorkara Desom v. Sethumadhavan Pangarappilly Desom and The State of Kerala (Crl.R.P.No.22 of 2003)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** **Crl.Rev.Pet.No.22 OF 2003(C)** **CRA 375/2000 DATED 28-11-2002 OF III ADDITIONAL SESSIONS (ADHOC) FAST TRACK COURT NO.I, THRISSUR** **CC 849/1996 DATED 15-07-2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS, WADAKKANCHERRY** ## **REVISION PETITIONER/S:** **BABURAJ THONOORKARA DESOM, THONOORKARA VILLAGE,, TALEPPILLY TALUK.** **BY ADV. SRI.PHILIP J.VETTICKATTU** ## **RESPONDENT/S:** **1 SETHUMADHAVAN PANGARAPPILLY DESOM, VILLAGE, TALAPPILLY TALUK. 2 THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. PUBLIC PROSECUTOR R1 BY ADV. SMT.V.RENJU R1 BY ADV. SMT.RAGAM.K.P. R1 BY ADV. SRI.VAKKOM N.VIJAYAN R1 BY ADV. SMT.VINITHA PRASANNAN** ## **OTHER PRESENT:** ## **SR.GP.JAYASURYA B.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.22 of 2003 -2- ## **JUDGMENT** Dated this the 14[th] day of February, 2020 **The revision petition is filed by the accused in C.C.No.849 of 1996, a case in which cognizance was taken on the basis of a complaint filed by the first respondent herein alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I.Act”).** **2. When the matter was taken up for consideration, the learned counsel for the revision petitioner submitted that the letter sent to the revision petitioner regarding the posting of the case, has been returned with the endorsement that 'the revision petitioner is no more'. It is submitted that none among the near relatives of the revision petitioner have come** Crl.R.P.No.22 of 2003 -3- **forward to further prosecute the revision petition.** **3. The first respondent had filed the complaint with the following allegations:-** **That the accused had demanded a sum of Rs.15,000/- from him and had issued a cheque for the same amount on 29.06.1996 drawn on the South Indian Bank, Chelakkara Branch. On presentation of the cheque, the same was dishonoured for want of sufficient funds in the account of the accused. The lawyer notice demanding payment of the cheque amount was submitted within time and though the accused accepted the notice, no reply was sent nor was the demand met, hence the complaint.** **4. In order to prove the allegations in the complaint, the first respondent got himself examined as PW1 and marked Exts.P1 to P5 in** Crl.R.P.No.22 of 2003 -4- **evidence. Though the accused denied the incriminatory circumstances brought out in the complainant's evidence while examined under Section 313 Cr.P.C, no defence evidence was adduced.** **5. On a consideration of the allegations and the evidence, the learned Magistrate found the accused guilty of the offence under Section 138 of the N.I.Act and sentenced him to undergo simple imprisonment for two months and to pay an amount of Rs.17,000/- as compensation under Section 357 (3) of Cr.P.C. Though the revision petitioner preferred an appeal, the same was dismissed, affirming the finding of guilt and also the sentence imposed by the trial court.** **6. On a perusal of the memorandum of revision petition, it is seen that the challenge** Crl.R.P.No.22 of 2003 -5- **against the concurrent findings of the courts below is primarily on the ground that the Manager of the drawee Bank was not examined to prove the factum of insufficiency of funds and the reason for dishonour. It is also contended that the memo of dishonour issued by the drawee Bank was not produced.** **7. I am of the considered opinion that the contentions urged in the revision petition is not sufficient to dislodge the concurrent findings entered by the trial court as well as the appellate court. The complainant had proved his case by production of the cheque return memo dated 22.07.1996 and 1.08.1996. It is settled law that in order to prove the factum of dishonour, the Manager of the Bank need not be examined in every case. As regards the contention based on non-production of memo issued from the** Crl.R.P.No.22 of 2003 -6- **drawee bank, the legation position has been laid down by this Court in** _**Soman v. Thomas Paul [2002 (1) KLT 771]**_ **. It was held therein that it is not an inflexible rule that in an action under Section 138 of the N.I.Act, the complainant should invariably produce the memo of dishonour issued by the bank in which the accused has his account, certifying that the reason for dishonour is want of funds. In such circumstances, I find no reason to interfere with the findings entered by the trial court, as affirmed by the appellate court.** **In the result, the revision petition is dismissed, confirming the finding of the guilt, conviction and the sentence imposed by the trial court. The fine amount, if any, deposited before the courts below shall be released to the first respondent on submission of appropriate** Crl.R.P.No.22 of 2003 -7- **application along with a certified copy of this** **judgment.** Sd/- **V.G.ARUN JUDGE** Scl/14.02.2020 Crl.R.P.No.22 of 2003 -8-