Kerala High Court
P.M.Aliyarkunju vs K.P.Charly on 25 March, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3488 of 2006()
1. P.M.ALIYARKUNJU,
... Petitioner
Vs
1. K.P.CHARLY,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.K.ABOOBACKER(EDAPPALLY)
For Respondent :SRI.PEEYUS A.KOTTAM
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :25/03/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.R.P.No.3488 of 2006
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Dated: 25th March, 2009
ORDER
The revision is filed by the accused against the concurrent verdict of guilty rendered against him for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). The learned Magistrate negativing his plea of not guilty found him guilty of the offence, and, thereupon, he was convicted and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.85,000/- under Section 357(3) Cr.P.C. to the complainant with default term of simple imprisonment for two months. In appeal, upholding the conviction the learned Sessions Judge modified and reduced the sentence directing him to undergo imprisonment till the rising of the court and to pay compensation of Rs.95,000/- with default term of simple imprisonment for six months. Aggrieved by the conviction and sentence as aforesaid, questioning its legality, propriety and correctness, the accused has preferred this revision.
2. I heard the learned counsel on both sides.
3. The main thrust of attack pressed into service by the learned counsel for the accused is based on the reply notice, copy of which is Crl.R.P.3488/06 - 2 -
produced along with an affidavit by a separate petition contending that the case set up by the complainant is bereft of any truth and whatever transaction he had with the complainant had been settled. Reliance is also placed on Ext.D1, a slip of paper containing some entries, which according to the learned counsel, indicated that the accused had discharged whatever amount borrowed from the complainant.
4. To appreciate the contentions advanced by the learned counsel for the accused, it is necessary to advert to the case of the complainant, the evidence let in the case and also the findings arrived at by the both the courts to hold that the accused had committed the offence under Section 138 of the N.I.Act. Towards discharge of a loan the accused issued Ext.P1 cheque for a sum of Rs.85,000/- promising its encashment on presentation in due course is the case of the complainant. The cheque presented was, however, dishonoured with an endorsement "suit filed account". Notice issued to the accused intimating dishonour and demanding the sum covered by the cheque was not responded with payment and thereupon the complaint was filed. The accused, on appearance, set up a plea of not guilty. The complainant examined himself as P.W.1 and got marked Exts.P1 to P7. During the cross examination of the complainant, the accused got Crl.R.P.3488/06 - 3 -
marked a slip of paper, Ext.D1, containing some entries advancing the defence case that the entries made in that slip showed the part payments made by the accused in discharging the loan which he had availed from the complainant. The learned Magistrate, after appreciating the materials, found the accused guilty of the offence and he was thereupon convicted. After reappreciating the evidence in appeal, the learned Sessions Judge also confirmed the findings arrived at by the learned Magistrate that the cheque had been issued towards discharge of a debt or liability with the accused had the complainant. In that view of the matter, the conviction was upheld, but the sentence was modified as indicated.
5. Before going into the merits of the challenge raised in the revision, it has to be pointed out that in revision, no additional evidence is admitted or considered since the revisional court is concerned with the legality, propriety and correctness of the orders passed by the inferior court on the materials tendered in the case. Scope of revisional jurisdiction is supervisory and in fact a review of the evidence is also not permissible unless it is shown that the finding entered by the inferior court is perverse in the sense that such a finding could not have been formed on the materials produced. Similarly, if at all there is any irregularity in the proceeding, the order Crl.R.P.3488/06 - 4 -
of that court is liable to be interfered with only if such irregularity had caused failure of justice. Such being the limited scope of revision, as of right, the parties in a revision are not entitled to produce additional evidence. The reply notice produced by the accused in the revision, it is submitted, was also available on record, as produced by the complainant but not exhibited in evidence during trial. If that be so, nothing prevented the accused in seeking permission of the trial court or at least the appellate court for exhibiting that document which was available on record. Further more, it is also noticed that no reason is shown by the accused in the affidavit sworn to in support of the petition seeking reception of a copy of the reply notice as additional evidence, what prevented him from producing that copy either before the trial court or the appellate court. When that be the case, I find that the copy of the reply notice sought to be admitted as additional evidence cannot be taken note of to examine the correctness of the finding entered by the inferior court. The findings arrived at by the courts below have to be tested on the available materials. When such an enquiry is proceeded with, within the narrow limited scope of revision, I find that other than culling out some admissions from the complainant during the course of his cross-examination that the accused had some previous transactions with him, no worth Crl.R.P.3488/06 - 5 -
mentioning circumstance to justify a conclusion that no debt or liability subsisted under Ext.P1 cheque. When questioned under Section 313 Cr.P.C. the accused offered an explanation that whatever amount due to the complainant had been discharged and he has in his possession a receipt to evidence such payment. So essentially the case set up by the accused was one of discharge. Even, according to his version, he had a receipt evidencing such repayment, but no such receipt was produced to show that he had discharged his liability to the complainant. The learned Magistrate who had the opportunity to watch the demeanour and deportment of the complainant when he was examined as P.W.1 found his testimony reliable, trustworthy and credible. The materials produced in the case would show that the cheque which admittedly arose from the account of the accused was dishonoured as the account of the accused was closed. The endorsement 'suit filed account' in the dishonour memo indicate that the bank had filed a suit against the account holder, probably, on account of his liability due to the bank. The endorsement 'suit filed account' shown as the reason for dishonour of the cheque demonstrate that the accused had no sufficient funds to honour the instrument and thereby he has, prima facie, committed an offence punishable under Section 138 of the N.I.Act subject to satisfaction of Crl.R.P.3488/06 - 6 -
the other statutory requirements for launching a prosecution for that offence. The learned Sessions Judge on reappreciation of the evidence found that the findings arrived at by the learned Magistrate are perfectly justified on the materials produced.
6. Conviction of the accused for the offence in the proved facts and circumstances of the case concurrently founded by both the courts below deserve only to be upheld, and I do so. Sentence as modified by the learned Sessions Judge, in the facts of the case, appears to be reasonable. However, it is noticed that no time limit has been fixed by the learned Sessions Judge for payment of compensation to the complainant. So, confirming the sentence, there will be an order directing the accused to pay compensation within three months from the date of this order.
7. The accused shall appear and his sureties shall produce him on 1st July, 2009 before the Judicial Magistrate of First Class-I, Kothamangalam and the learned Magistrate shall execute the sentence as directed.
srd S.S. SATHEESACHANDRAN, JUDGE