Kerala High CourtP.K.Rajendran vs John Victor.P.A on 5 July, 2005IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

             THE HONOURABLE MR.JUSTICE K.HARILAL

     MONDAY, THE 22ND DAY OF JUNE 2015/1ST ASHADHA, 1937

              Crl.Rev.Pet.No. 2764 of 2005 (A1)
              ---------------------------------


AGAINST THE JUDGMENT IN CRL.A 786/2004 of I ADDL. SESSIONS
COURT, ERNAKULAM DATED 05-07-2005

AGAINST THE JUDGMENT IN CC 1206/2000 of J.M.F.C.-I,ERNAKULAM
DATED 14-07-2004

REVISION PETITIONER(S)/APPELLANT/ACCUSED:
-----------------------------------------

       P.K.RAJENDRAN,
       BLOCK NO.1147, KALLUR POST, THOOKKUPALAM
       IDUKKI.

       BY ADVS.SRI.GOVIND K.BHARATHAN (SR.)
               SRI.MANU MOHAN

RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:
-----------------------------------

          1. JOHN VICTOR.P.A,
       48/1661, VALIAPARAMBIL ELAMAKKARA, COCHIN.

          2. STATE OF KERALA,
       REPRESENTED BY THE PUBLIC PROSECUTOR,
       HIGH COURT OF KERALA, ERNAKULAM.

       R1 BY ADV. SRI.K.G.SARATHKUMAR
        R2 BY PUBLIC PROSECUTOR SRI.JIBU P.THOMAS


       THIS CRIMINAL REVISION PETITION  HAVING BEEN FINALLY
HEARD ON 22-06-2015, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:




OKB



                      K.HARILAL, J.

                _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

                 Crl.R.P. No.2764 of 2005
                _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

           Dated this the 22nd day of June, 2015.


                          O R D E RThis revision petition is filed challenging the

concurrent findings of conviction entered and the

sentence imposed on the revision petitioner for the

offence   punishable      underSection     138of the

Negotiable Instruments Act, 1881 (for short, 'theN.I.

Act') in Criminal Appeal No.786/2004 on the files of the

court of the I Additional Sessions Judge, Ernalulam.

The above appeal was filed challenging the judgment

finding that the revision petitioner is guilty of the

said offence, passed in C.C.No.1206/2000 on the files of

the   Judicial  First      Class      Magistrate's   Court-I,

Ernakulam.   According to the impugned judgment, the

revision petitioner was sentenced to undergo simple

imprisonment for one day till rising of the court and

to pay to the complainant Rs.70,000/- as compensation

underSection 357 (3)of the Cr.P.C. and in default to

Crl.R.P.2764/05                :2:undergo simple imprisonment for three months.2. The case of the complainant is that in order to

discharge the liability of the brother of the accused,

the accused had issued Exts.P1 and P2 cheques for an

amount of Rs. 35,000/- each and when the said cheques

were       presented for  encashment,  the   same   were

dishonoured with an endorsement "Account Closed".

The accused, in defence, contended that Exts.P1 and P2

cheques had been issued under coercion exerted by the

complainant. It is also contended that since the

cheques were returned on the reason that the account

was closed, the offence undersection 138of the N.I.

Act is not maintainable against the accused. The court

below has specifically and elaborately considered the

contentions raised by the accused and held that as

regards the allegation of coercion, except the oral

assertion of the accused, there is no evidence to show

that the cheques were obtained by the complainant by

way of coercion. Even though the accused has produced

Ext.D1 lawyer notice, the same would not go to show

that the cheques were issued as a result of the

Crl.R.P.2764/05                   :3:coercion exerted by the complainant. As regards the

second contention, the court below rejected the said

contention relying on the decision laid down by the

Supreme Court inGoa Plast (P) Ltd v. Chico UrsulaD'souza [2004 (3) KLT 93 (SC]. Inthe above decision, the

Apex Court held that "once cheque is issued by a

drawer, the presumption underSection 139must follow

and merely because the drawer issued notice to the

drawee or to the bank for stoppage of payment, it will

not preclude an action underSection 138of the N.I. Act

by the drawee or the holder of the cheque in due

course. In view ofthe above decision, the court below

is justified in rejecting the said contention also. I do

not find any kind of illegality or impropriety in the

above finding. The revision petitioner is given three

months time to pay the compensation. Consequently,

the revision petitioner will stand sentenced as

follows:i. The revision petitioner shall undergo simple
               imprisonment for one day till rising of the
               court.ii. He shall pay a compensation of Rs.70,000/- to

Crl.R.P.2764/05                    :4:the complainant underSection 357(3)of the
               Cr.P.C. within a period of three months from
               today.iii.He shall appear before the trial court to
               suffer the substantive sentence of simple
               imprisonment as ordered above on or before
               23/9/2015  with  sufficient  proof  to   show
               payment of compensation.iv.In    default,  he   shall  undergo   simple
               imprisonment for three months.This criminal revision petition is disposed of as

above.Sd/-K. HARILAL, JUDGE

okb.