IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 Crl.Rev.Pet.No. 401 of 2008(A) ----------------------------- CRA.304/2006 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.793/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------------------------------- UMMER HAJI, S/O. MAMMAD HAJI KIZHAKKUMPARATH HOUSE, P.O. PULLOKKARA, PULLOKKARA AMSOM, TELLICHERY TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT/COMPLAINANT AND STATE ------------------------------------------------------------- 1. AZEEZ, S/O. AMMED HAJI PARAPPIL HOUSE, IRINGATH P.O., KOYILANDY TALUK. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C NAIR SRI.N.K.SANATH KUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Crl.R.P. No. 401 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of August, 2011 ORDER The revision is by the accused convicted for the offence under Section 138 of Negotiable Instruments Act (for short 'N.I. Act'.) concurrently by the two inferior Courts. The trial Magistrate on his conviction has sentence him to undergo imprisonment till the rising of Court with direction to pay a sum of Rs.7,50,000/-(rupees seven lakhs fifty thousand only) as compensation to the complainant and in default simple imprisonment for a period of six months. In appeal the leaned Sessions Judge affirmed the conviction and also the sentence without any modification. Feeling aggrieved the accused has preferred this revision petition. 2. Two cheques issued by the accused one for a sum of Rs.5,00,000/-(rupees five lakhs only) and the other for a sum of Rs.2,50,000/-(rupees two lakhs fifty thousand only), both of them on presentation were dishonoured due to stop payment order issued by him was the case of the complainant/1st respondent. After issuing a Crl.R.P.No.401 of 2008 : 2 : statutory notice which was returned not claimed prosecution proceedings were launched against the accused filing the complaint imputing the offence under Section 138 of N.I. Act. The accused in defence has contended that he had no transaction with the complainant and two cheques were issued by him to one Assainar Haji towards a transaction relating to purchase of immovable property from him. Such cheques drawn with the columns of payee and date left blank and the other entries filled up and signed by him, had been misused by the said Haji, through the complainant, his brother in law after agreement of sale had fallen due, was the case of the accused. He had a further case that he had partnership business with the said Assainar Haji while both of them were in Gulf Countries. Notice of dishonour was not served on him and the stop payment was issued since he had no liability to be discharged even to Assainar Haji on the basis of cheque, was his further case. On the materials placed by both sides the trial Magistrate found the case of the complainant established and that of the accused unworthy of any merit. On re-appreciation of the materials the conclusion formed by Crl.R.P.No.401 of 2008 : 3 : the learned Magistrate to enter finding of guilt against the accused of the offence imputed was approved by the learned Sessions Judge, who also found no merit in the defence canvassed to assail the prosecution. Concurrent finding of guilt, and on that basis the conviction entered against the accused, is assailed by the counsel for the accused contending that very many material circumstances supporting the defence version were discarded by both the Courts and that has resulted in forming the wrong conclusion to found the conviction against the accused. The evidence of the accused examined as DW1 was not properly appreciated and, further, despite the challenge raised denying of any transaction with the complainant and also issue of cheques to him no evidence was tendered by the complainant to prove due execution of the cheques and also that such instruments have been issued towards the discharge of the debt or liability from the accused to him, is the submission of the counsel. When the handwriting expert, DW2 opined that he could not express a conclusive opinion on the writings relating to the name of the payee on the instruments the accused had moved an application for Crl.R.P.No.401 of 2008 : 4 : sending the cheques to the same expert for further scrutiny after collecting additional writing as may be required from the accused to enable such examination. The trial Magistrate dismissed that application and that has caused prejudice to the accused in establishing his defence is the further submission made by the counsel in support of the challenges canvassed in the revision. 3. Per contra, the learned counsel appearing for the complainant adverting to the reasonings expressed by both the Courts, contended that there is no infirmity whatsoever in the conclusions formed concurrently to hold the accused guilty of the offence imputed where the handwriting expert has stated that a conclusive opinion cannot be given where capital letters are written in a detached manner unless it is shown to be incorrect, sending over the documents again to him collecting further writings from accused, in the given facts of the case, would have been only a futile exercise, and, therefore, turning down the application moved by the accused for examination afresh by the trial Magistrate was appropriate and correct, and, at any rate it cannot be canvassed to challenge the Crl.R.P.No.401 of 2008 : 5 : conviction as such is otherwise proved by the materials on record. 4. Going through the judgments rendered by the two courts below, I find several defences had been raised by the accused to assail the prosecution, like the non receipt of the notice intimating dishonour, presentation of the cheque when a stop payment order had been issued to the bank, denial of the transaction with the complainant and handing over of the cheques to him towards a debt or liability, non providing of opportunity afresh for further scrutiny of writings on the cheques through the experts after collection of fresh materials etc. However, before me the challenges against the conviction concurrently by the two courts, confined to the execution of the cheques in relation to a debt or liability outstanding with the complainant from the accused contending that due execution has not been established from the materials produced, and also that the accused was denied of an opportunity in not having further examination on the writings over the instruments after collecting fresh materials through the same expert, who had been examined as DW2 in the case. So far as the denial of execution of the Crl.R.P.No.401 of 2008 : 6 : instruments, it is the admitted case of the accused that he had written the sum stated in the instruments and also subscribed his signatures as well. However, the columns of 'payee' and 'date' were left blank and such instruments were given as security to one Assainar Haji in relation to a transaction with him for the purchase of property, was his defence. Other than the oral evidence of the accused as DW1, he did not place any material to prove his defence. Though the defence pleaded by the accused need be established by showing its acceptance as probable, satisfying the test of preponderance of probabilities, it has to be noted that the case developed by the accused that he had handed over two cheques, admittedly, writing the sum in his hand and subscribing them with his signatures, but leaving the name of the payee and date columns blank, towards purchase of the same property from Assainar Haji, without any supporting document evidencing such transaction can be taken only with a pinch of salt. He has no case that he had issued any notice to Assainar Haji or taken any legal action at any point of time against him for the reason that the cheques handed over had been misused Crl.R.P.No.401 of 2008 : 7 : through another for launching criminal prosecution against him. The learned Magistrate who had the opportunity to watch the demeanour of the complainant, as PW1, and also accused as DW1, found the testimony of the former reliable, trustworthy and convincing and that of the latter devoid of any merit. Challenge against the execution of the instruments has to be appreciated with reference to the admission of the accused that except for the name of the payee and date, the rest was not written in his own hand. When that be so the only question is whether the cheques had been handed over by him to the complainant towards the discharge of a debt or liability. Section 139 of N.I. Act mandates that a presumption is available to the holder of the cheque that such instrument had been given in discharge of a debt or liability unless and until the contrary is proved. When a dispute challenging the transaction relating to the cheque is raised by the drawer of the instrument, where the evidence of complainant is found acceptable to hold that there was due execution, the presumption as aforesaid is available and nor further proof over the transaction and existence of debt or liability over the Crl.R.P.No.401 of 2008 : 8 : issue of cheque is necessary. I do not find any propriety in the conclusion formed by both the courts below to discard the defence raised by the accused denying the transaction with the complainant with respect to the issue of cheques. Similarly, when the hand writing expert has stated that where capital letters are written in a detached manner unless there is individual characteristics and identifying marks in such letters written it would be difficult to express any opinion on comparison with attempted writings to express an opinion regarding similarities and dissimilarities over the writings, and such opinion given is not shown to be incorrect, no purpose would have been served by sending over the cheques again to the same expert with additional materials to enter a finding over the disputed writings regarding the 'payee' shown in the instrument. In the context, I also take note that the trial Magistrate despite the opinion so expressed by the expert, after examining the disputed writings in the column of 'payee' with the admitted writings of the accused has found that similarities in the writings are mere to indicate that such writings are by the same hand. When such be the Crl.R.P.No.401 of 2008 : 9 : view expressed by the learned Magistrate, who had the best opportunity to record the evidence and scrutanised them, I find no merit in the challenge raised as to the denial of the opportunity in not providing further examination of the disputed writing with additional materials through the same expert. Suffice to said that the challenges canvassed to assail the conviction of the accused, concurrently entered by the two courts below, lack merit. 5. So far as the sentence imposed, I find both courts have extended sufficient leniency and no further modification is called for. The learned counsel for the accused at this stage requested for three months time to pay off the compensation and, thus, avoid the default term of sentence. Cheques involved in the case were issued in 2004 and after dishonour of such instruments and conviction entered against the accused, still the complaint is deprived of the sum covered thereunder. That being so, further extention of time canvassed by the counsel for payment cannot be granted. However, there would be a direction to the Magistrate concerned to keep in abeyance the execution of sentence for a period of six weeks from Crl.R.P.No.401 of 2008 : 10 : today to enable the accused to pay off the compensation awarded and, thus, avoid the default time of imprisonment. What ever amount deposited by the accused before Court shall be given credit to in the compensation awarded. The accused is directed to appear before the Magistrate's Court on 26.9.2011 to serve out the substantive term of imprisonment of one day, till rising of Court, and to report payment of compensation. In case of his default to appear and nonpayment of the compensation, the Magistrate shall execute the sentence taking appropriate steps in accordance with law. The revision petition is disposed of. (S.S. SATHEESACHANDRAN, JUDGE) kp