Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE18H DAY OF AUGUST201427TH SRAVANA, 1936 Crl.Rev.Pet.No. 1129 of 2014 () -------------------------------- AGAINST THE JUDGMENT
IN CRL.A722013 of SESSIONS COURT, KASARAGOD AGAINST THE JUDGMENT
IN CC2212012 of J.M.F.C.-II,HOSDRUG REVISION PETITIONER(S): ----------------------- EDAPPALLIYIL MATHAI THOMAS, AGED39YEARS S/O.THOMAS, R/AT AYANNUR, P.O.KADUMENI CHITTARIKKAL VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT. BY ADVS.SMT.R.LEELA SMT.SHYNI PELEXY RESPONDENT(S)/COMPLAINANT AND STATE: ------------------------------------ 1. P.O.THOMAS, AGED67YEARS, S/O.LATE JOSEPH, R/AT GOSADA, P.O.MOVVAR KUMBADAJE VILLAGE, KASARAGOD DISTRICT, PIN-671101.
2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. R2 BY PUBLIC PROSECUTOR SMT. REMA.R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON1808-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.UBAID, J.
~~~~~~~~~~ Crl.R.P No.1129 of 2014 ~~~~~~~~~~~ Dated this the 18th August, 2014 ORDER
A cheque for 2 lakhs issued by the revision petitioner in discharge of a liability incurred in an agreement for sale of his property was dishonoured due to insufficiency of funds. When he failed to make payment on demand, the 1st respondent herein initiated prosecution against him under Section 138 of the Negotiable Instruments Act before the Judicial Magistrate of First Class Court II, Hosdurg. He entered appearance in the trial court and pleaded not guilty to the accusations. The complainant examined himself and another witness, and marked Exts.P1 to P4 during trial. In defence, the accused examined himself and marked two documents. Finding that the evidence adduced by the revision petitioner will not probabilise the defence pleaded by him, and believing the evidence adduced by the complainant, the trial court found the revision petitioner guilty. On conviction, he was sentenced to undergo Crl.R.P No.1129 of 2014 2 imprisonment till rising of the court, and was also directed to pay a compensation of 2,00,000/- to the complainant under Section 357 (3) of Cr.P.C.
2. Aggrieved by the conviction and sentence, the revision petitioner approached the Court of Session, Kasaragod with Crl.A No.72 of 2013. In appeal, the learned Sessions Judge confirmed the conviction and sentence, and accordingly dismissed the Criminal Appeal. Now he is before this Court in revision, challenging the legality and propriety of the conviction and sentence.
3. Notice on admission was given to the 1st respondent. In spite of notice, he remained absent in this proceeding. On hearing the learned counsel for the revision petitioner and on a perusal of the case records, I find no reason or ground to admit the revision to files. The cheque in question was admittedly handed over by the revision petitioner in a transaction of sale of property evidenced by Ext.D1. Admittedly, he had received an advance consideration of 5 lakhs. The case of the complainant is that 3 lakhs was returned in cash, and for the balance Crl.R.P No.1129 of 2014 3 amount, the revision petitioner issued the cheque in question. The sale transaction is proved by Ext.D1 agreement marked on the side of the accused himself. The case of the accused is that he had returned the full amount, and the cheque handed over by him as security was later misused by the complainant. Such a case stands not in any manner proved or probabilised to the satisfaction of the court. I find that the case of the complainant stands well proved by his own evidence, and also that of PW2, who witnessed the transaction including making of the alleged Negotiable Instrument. I find that the complainant has well proved his case on facts regarding the transaction and execution of the cheque in question, and the complainant has also proved compliance of the statutory requirements. Ext.P2 statutory notice was sent by the complainant in time, but the accused did not send reply to the notice. He has also no case that he had sufficient funds in his account to honour the cheque, or that the cheque was bounced on some other ground. I find no illegality or irregularity or impropriety in the conviction or in the sentence made by the courts below. Crl.R.P No.1129 of 2014 4 4. The learned counsel for the revision petitioner made a request for some time to make payment of the compensation in the trial court. On a consideration of the amount involved, I feel that the time for six months can be granted to make payment of the compensation in the trial court. In the result, this revision petition is dismissed in limine, without being admitted to files. However, the revision petitioner is granted time for six months from this date to surrender before the trial court to serve out the sentence and make payment of the compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the sentence and recover the amount of compensation, or enforce the default sentence. Sd/- P.UBAID JUDGE ma /True copy/ P.S to Judge