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2023 DIGILAW 769 (KER)

V. Unnikrishnan v. K. P. Babu

2023-10-04

N.NAGARESH

body2023
ORDER : 1. The accused in CC No. 774/2018 on the files of the Judicial First Class Magistrate's Court-V, Kozhikode and the appellant in Criminal Appeal No. 132/2022 on the files of the Court of Sessions, Kozhikode Division, has filed this revision petition invoking Sections 397 and 401 Cr.P.C. 2. The revision petitioner is the accused in CC No. 774/2018. The 1st respondent alleged that the revision petitioner came to `Gopakripa Bankers' owned by the 1st respondent and borrowed Rs.75,000/-. A promissory note was also executed. When the 1st respondent demanded the money back on 30.07.2018, the revision petitioner came to Gopakripa Bankers and executed and issued a cheque drawn on UCO Bank, Mavoor Branch. 3. The cheque, when presented for collection through Punjab National Bank, Pantheerankavu Branch, was dishonoured for the reason `Account Closed'. A memo in this regard was received on 02.08.2018. The 1st respondent sent lawyers notice on 29.08.2018. The revision petitioner failed to make payment. 4. The Magistrate's Court took the complaint into file. The 1st respondent was examined as PW1 and Exts.P1 to P4 documents were marked. The Magistrate's Court found that the 1st respondent had complied with all statutory requirements for a successful prosecution under Section 138 of the Negotiable Instruments Act. The revision petitioner executed and issued Ext.P1 cheque in discharge of a legally enforceable debt. The revision petitioner has committed the offence punishable under Section 138. Consequently, the revision petitioner was sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.1,02,000/-. In default of payment, the revision petitioner was sentenced to undergo simple imprisonment for one month. The fine, if realised, was to be paid as compensation to the 1st respondent. 5. Aggrieved by the judgment dated 25.03.2022 of the Judicial First Class Magistrate's Court-V, Kozhikode, the revision petitioner filed Criminal Appeal No. 132/2022 before the Court of Sessions, Kozhikode Division. The Sessions Court found that the contention of the revision petitioner that he has not issued the cheque cannot be accepted since presumption is in favour of the 1st respondent which stands unrebutted. The Sessions Court held that the trial court has taken a very liberal view and hence the conviction and sentence passed by the trial court has to be maintained. The Sessions Court therefore dismissed the appeal. 6. The Sessions Court held that the trial court has taken a very liberal view and hence the conviction and sentence passed by the trial court has to be maintained. The Sessions Court therefore dismissed the appeal. 6. I have heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the 2nd respondent. 7. Going through Exts.P1 to P4 documents, it is evident that the 1st respondent presented the cheque within its period of validity and that the cheque was dishonoured for the reason `Account Closed'. The 1st respondent issued notice within the statutory period. Though the revision petitioner denied money transaction between him and the 1st respondent, the issuance of cheque by the revision petitioner is proved by credible evidence. The examination of the complainant did not bring anything to discredit his evidence. 8. The accused has no case that he has not maintained any account in the Bank or that he has not issued any cheque. Therefore, when the cheque is dishonoured for the reason `Account Closed', it cannot be presumed that the revision petitioner has not issued the cheque. 9. The execution of cheque is proved. The petitioner did not successfully rebut the presumption in favour of the 1st respondent. The petitioner had no case that he has not borrowed the money. The petitioner has not explained how his cheque happened to be in possession of the 1st respondent. In the circumstances, I do not find any reason to interfere with the judgments of the courts below. 10. However, taking into consideration the facts and circumstances of the case, I am inclined to grant four months time to the petitioner for payment of compensation and for undergoing the punishment. 11. The conviction and sentence imposed by the Judicial First Class Magistrate's Court-V, Kozhikode in CC No. 774/2018, as upheld in Criminal Appeal No. 132/2022 of the Court of Session, Kozhikode Division are therefore confirmed. The petitioner shall pay fine of Rs.1,02,000/- within a period of four months from today. The petitioner shall appear before the Judicial First Class Magistrate's Court-V, Kozhikode on 05.02.2024 to undergo the sentence. 12. Crl. R.P. is disposed of as above.