IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 Crl.Rev.Pet.No. 1636 of 2010() ------------------------------ CRA.298/2009 of ADDL. DISTRICT & SESSIONS JUDGE (FAST TRACK COURT-I), ALAPPUZHA CC.1290/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------------------------------- G.RAVEENDRAN, S/O GOVINDAN, KARUKAKANDATHIL, KOKKOTHAMANGALAM P.O., CHERTHALA. BY ADV. SRI.T.JAYAKRISHNAN RESPONDENT/RESPONDENT(S)/COMPLAINANT & STATE: ------------------------------------------------------------------------------------ 1.N.VISWANATHAN NAIR, S/O.PARAMESWARA PANICKER, ASWATHI, C.M.C-IX, CHERTHALA P.O. 2.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION ALONG WITH Crl.R.P.No.1637/10, HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.Nos.1636 & 1637 of 2010 ----------------------------------- Dated this the 26th day of May, 2010. O R D E R As the parties are common in the above revision petitions and the subject matter are identical and similar, these two revision petitions are heard together and being disposed of by this common judgment. 2. Crl.R.P.No.1636/2010 :- In this revision petition, the challenge is against the judgment dated 29.5.2009 in C.C.No.1290/06 of the Judicial First Class Magistrate Court-I, Cherthala, wherein the allegation is that the revision petitioner/ accused borrowed a sum of Rs.50,000/- from the complainant and towards the discharge of the said liability, he issued a cheque, dated 22.7.2006, which when presented for encashment dishonoured for want of sufficient fund, with an endorsement that “full cover not received”. In this case, the evidence of complainant consists of oral testimony of PW1 and documentary evidence such as Exts.P1 to P6. From the side of the defence, DW1 was examined and Exts.D1 to D3 were marked. After Crl. R.P.Nos.1636 & 1637 of 2010 2 appreciating the evidence on record, the trial court has found that the accused is guilty and accordingly he was convicted u/s.138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs.50,000/- and the default sentence is fixed as simple imprisonment for two months. It has also directed that, on realisation of the fine amount, the same shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3. Crl.R.P.No.1637/2010 :- In this revision petition, the allegation against the revision petitioner/accused is that towards the discharge of the liability, he had executed and issued 3 cheques, dated 22.5.2006, 22.6.2006 and 7.7.2006 respectively for an amount of Rs.25,000/-, Rs.50,000/- and Rs.25,000/-. According to the complainant, when the above cheques were presented for encashment, the same were dishonoured due to insufficiency of fund in the account maintained by the revision petitioner/accused. In this case also, the evidence of the complainant consists of the oral testimony of PW1 and Exts.P1 to P9 documents, which were also marked. From the side of Crl. R.P.Nos.1636 & 1637 of 2010 3 the defence, DW1 was examined and Exts.D1 series were marked. After considering the evidence on materials, the trial court found that the accused is guilty and accordingly convicted him u/s.138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1 lakh and default sentence is fixed as 3 months simple imprisonment. It has also ordered that the fine amount if realised, shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 4. By challenging the above convictions and sentence imposed against the revision petitioner by the trial court, though two separate appeals were preferred, by judgment dated 12.3.2010 in Crl.A.Nos.298/09 and 297/09, the Court of Addl. District & Sessions Judge (Fast Track Court-I), Alleppey, dismissed the above appeals, confirming the conviction and sentence imposed against the revision petitioner. It is the above judgments of the courts below and the conviction and sentence imposed against the revision petitioner, vide the above judgments, challenged in this revision petitions. Crl. R.P.Nos.1636 & 1637 of 2010 4 5. The main challenge in these two revision petitions, are the concurrent finding of the trial court as well as the lower appellate court arrived on against the revision petitioner. Going by the arguments advanced by the learned counsel for the revision petitioner and the judgments of the trial court as well as the lower appellate court, it can be seen that the accused/ revision petitioner has admitted the transaction, though not as claimed by the complainant, and also admitted the execution and issuance of the cheques in question. According to the accused, he had paid off the entire amount, which was due from him to the complainant and the dispute was with respect to the interest only. According to the revision petitioner, out of the 8 cheques which entrusted with the complainant at the time of the transaction, as claimed by him, 5 cheques were misused. No explanation forthcoming from the revision petitioner, as to why he failed to initiate any proceedings against the complainant, for not returning the cheque leaves, particularly when he claimed that he had discharged the entire liability. In the light of the facts pleaded by the revision petitioner, which I referred now, it Crl. R.P.Nos.1636 & 1637 of 2010 5 can be seen that these are question of facts ought to have been substantiated by adducing cogent evidence. The courts below has concurrently found that, the complainant has established his case beyond reasonable doubt, whereas though the accused raised such a plea, the same was not convincingly established. Therefore, I find no reason to interfere with the finding of facts arrived on by the courts below. As I indicated earlier, when the defence admits the transaction and the execution and issuance of the cheque, it is heavily upon the accused to substantiate the plea so as to discharge his burden of rebutting the presumption, which is available in favour of the complainant u/s.139 of Negotiable Instruments Act. Ofcourse, the said plea need not be discharged in the same standard as that of the prosecution, of proving its case beyond reasonable doubt. Now it is settled position that the accused can discharge such a burden by establishing the case, by preponderance of probability. But mere denial or offering mere explanation is not sufficient to meet the above legal requirement. In view of the above position both legally and factually, I find no reason so as to exercise the Crl. R.P.Nos.1636 & 1637 of 2010 6 revisional jurisdiction of this court to interfere with the orders of the courts below. Hence the conviction u/s.138 of Negotiable Instruments Act recorded by the Courts below are confirmed. 6. The learned counsel for the revision petitioner submitted that, in case this court is not inclined to interfere with the impugned orders, some breathing time may be granted to the revision petitioner to make the deposit of fine and a lenient view may be taken in the case, of the sentence imposed against him. Considering the facts and circumstances involved in the cases, I am of the view that the said prayer can be considered favourably but subject to, the enhancement of the fine amount. Admittedly, there were frequent transaction between the revision petitioner/accused and the complainant. The cheques in question are pertain to the year 2006 and altogether the amount will come to the tune of Rs.1,60,000/-. The apex court in a recent decision reported in, Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy Crl. R.P.Nos.1636 & 1637 of 2010 7 should be given priority over the punitive aspects. Hence, I am of the view that while reducing the sentence of imprisonment, the fine amount can be enhanced and reasonable time can be given to make the payment. In the result, these two revision petitions are disposed of confirming the conviction of the petitioner in C.C.Nos.1290/06 and 1343/06 of the Judicial First Class Magistrate Court-I, Cherthala, as recorded by the said trial court as well as the lower appellate court. In both the cases, the sentence of imprisonment is reduced till the raising of the court, and the same are ordered to run concurrently and the fine amount in C.C.No.1290/06 is enhanced to the tune of Rs.55,000/- and on failure on the part of the revision petitioner, he is directed to undergo imprisonment for a period of 3 months. In C.C.No.1343/06, the fine amount is enhanced to the tune of Rs.1,10,000/- and on default on the part of the revision petitioner in paying the said fine amount, he is directed to undergo simple imprisonment for a period of 6 months. If the fine amounts are realised in the above two cases, the same Crl. R.P.Nos.1636 & 1637 of 2010 8 shall be given to the complainant in both the cases, u/s.357(1) (b) of Cr.P.C. Accordingly, the revision petitioner in both these cases is directed to appear before the trial court on 31.8.2010, to receive the sentence of imprisonment as modified and to deposit the enhanced fine amount as refixed by this court, failure on which the trial court is free to take coercive steps against the revision petitioner to procure his presence and to execute the sentence. The execution of the warrant, if any pending, shall be defered till 31.8.2010. Criminal revision petitions are disposed of accordingly. V.K.MOHANAN, Judge. ami/