IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 Crl.Rev.Pet.No. 3524 of 2009(A) -------------------------------------------- [AGAINST THE JUDGMENT DATED 17/08/2009 IN CRL.A.NO.483/2008 OF SESSIONS COURT, THIRUVANANTHAPURAM AND JUDGMENT DATED 09/05/2008 IN ST.NO.1/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI,THIRUVANANTHAPURAM] .................... REVN. PETITIONER/1ST RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------------- SOBHA K.C./SHOBHA TOM, T.C.8/1627, B.N-37, PONGUMOODU, THIRUVANANTHAPURAM. BY SMT.SHOBHA K.C. (PARTY-IN-PERSON). RESPONDENTS/APPELLANT/ACCUSED: --------------------------------------------------------- 1. RAJENDRAN.K.N, S/O.NEELAKANTAN NAIR, PROPRIETOR, KERALA WOOD INDUSTRIES, KOYIKKONATHU, SREEVALSAM, THUMPAMAN, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.R.BINDU (SASTHAMANGALAM), R2 BY PUBLIC PROSECUTOR SMT. SEENA.R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2011, ALONG WITH CRL.R.P NO. 3525 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 ----------------------------------------- Dated this the 28th day of October 2011 ORDER These revisions, six in number, emanate from three cheque cases, all filed by the common complainant against the common accused, for the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'). Negativing the plea of not guilty canvassed by the accused in all the three cases, after having joint trial, the accused was convicted of the offence. In one of the cases he was sentenced to undergo simple imprisonment for a period of two months with direction to pay the cheque amount, `.50,000/-, with default term of simple imprisonment for a further period of one month. In the other two cases, one of them, he was sentenced to undergo simple imprisonment for three months with direction to pay the cheque amount of `.2,65,000/- with default term of simple imprisonment for a period of one month, and in the other case, simple imprisonment for three months and payment of cheque amount of `.6,85,000/- with default term of simple imprisonment for one month respectively. Questioning his conviction, the accused preferred separate appeals in all the three cases, and the common complainant, three separate revisions impeaching the sentence awarded as inadequate and insufficient. Both the appeal and Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 2 the revisions, after being heard together, were disposed by a common judgment by the learned Sessions Judge, by which the conviction entered against the accused in all the three cases was confirmed modifying the substantive term of imprisonment imposed in all the cases, reducing it to imprisonment till rising of the court, but, retaining the compensation awarded with enhancement over the default term of imprisonment provided thereof to a period of four months each in all the cases. Revisions filed by the common complainant, all three of them, questioning the sentence awarded by the magistrate were dismissed. The accused, impeaching his conviction concurrently rendered by the two inferior courts have preferred the three revisions Crl.R.P No.3872/2009, 3873/2009 and 3874/2009. The common complainant has preferred the other three revisions Crl.R.P No.3524/2009, 3525/2009 and 3526/2009 assailing and questioning the modification of the sentence by the learned sessions Judge as indicated above with a further plea for awarding appropriate and adequate sentence, and also enhancement of the compensation in each case. 2. Complainant appeared party in person. I heard both sides, and, perused the judgments rendered by the learned magistrate and also the learned sessions Judge. 3. The case of the complainant is that towards loan transaction for a sum of `.10,00,000/-, availed on different occasions, the accused Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 3 issued to her three cheques, one cheque dated 27-06-2002 for a sum of `.6,85,000/-, second cheque for `.50,000/- dated 20-07-2002 and the third cheque for a sum of `.2,65,000/- dated 28-08-2002. Such cheques, on presentation, were dishonoured due to insufficiency of funds in the account maintained by the accused in his bank. Statutory notice issued intimating the dishonour not being responded with any reply or payment, the complaints were filed launching the prosecution against the accused for the offence under Section 138 of the NI Act. The accused resisted the prosecution setting forth a defence that he had no transaction with the complainant but only with her husband. The tenor of cross examination of the complainant, examined as PW1, and also on questioning under Section 313 of the Code of Criminal Procedure, he projected a defence version that in relation to the money transaction with the husband of the complainant he had issued a cheque for a sum of `.50,000/-, and, subsequently on a different transaction, later, as demanded by the husband of the complainant he handed over two blank signed cheques and also stamp papers as security for the loan advanced by him. The cheques, which he handed over to the complainant's husband, after the spouses fell apart, but, in the house where they resided together, which continued to be under the occupation of the complainant, had been fraudulently misused by the complainant to file the complaints against him on false allegations, Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 4 to prosecute him for the offence under Section 138 of the NI Act was in short the defence set up to withstand the prosecution over dishonoured cheques, which, admittedly, arose from the account of the accused. In order to substantiate the defence so canvassed, the former husband of the complainant, who, by that time had severed the matrimonial tie with complainant by a decree passed on mutual consent, and father-in- law of the accused were examined as DW2 and DW1 respectively. He examined his father-in-law to contend that whatever liability he had with DW2, the husband of the complainant, had been discharged by payment, and on such discharge Ext.D1 receipt evidencing payment of `.50,000/- was issued. Both the courts after meticulous consideration of the materials tendered in the case accepted the case of the complainant as reliable and trustworthy and repelled the defence projected by the accused as unworthy of any merit. Concurrent finding of guilt entered by the two inferior courts against the accused to found the conviction against him under Section 138 of the NI Act in the three cases is sought to be assailed by him in the three revisions mainly raising the challenges that the defence projected by him disputing the transaction of the complainant and also denying the execution of at least two of the cheques which on the materials produced by him has been shown to be probable was not properly and correctly appreciated by both the courts below and that has resulted in miscarriage of justice. Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 5 The admissions made by the complainant when examined as PW1, though she denied Ext.D1 receipt exhibited in evidence, would clearly demonstrate that whatever money transaction the accused had was at a point of time when the spouses cohabitated together and it was only between the accused and DW2, the husband of the complainant, is the submission of the learned counsel for the accused. The date shown in Ext.D1 receipt with reference to the dates of the cheques, in all three of them, is pointed out by the counsel to contend that the probability of the defence raised by him resisting the prosecution, which was supported by the evidence of husband of the complainant, deserved acceptance and the courts below have wrongly discarded the same without adverting to the materials produced. On the other hand, the complainant appearing in person, who is stated to be a practicing advocate, contended that the concurrent finding on fact entered by the courts below to found the conviction against the accused does not suffer from any infirmity whatsoever, warranting interference in exercise of supervisory jurisdiction vested with this court. The evidence let in through DW1 and DW2 by the accused to sustain the defence canvassed by him is selfcontradictory and it has been rightly and correctly found to be unworthy of any merit by both the courts below, is the submission of the complainant. Conviction of the accused is based on unimpeachable legal evidence tendered in the case and it requires Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 6 only to be affirmed, according to the complainant. So far as the sentence imposed against the accused, pointing out that the prosecution over the dishonoured cheques commenced in 2003 and that the money value covered by those instruments from such period as of now has depleted to such an extent, and, according to the complainant, when compensation was awarded as part of the sentence imposed double the cheque amount should have been allowed to be realised. Referring to the agreements executed by the accused, which have been brought in evidence, it is contended that he had unconditionally agreed to repay the sum availed as loan with 18% interest per annum. For the reason that the complainant has avoided multiplicity of proceedings of having not instituted a separate civil suit, she should not be deprived of the compensation actually due, is her further submission. A deterrent punishment imposing a substantive term of imprisonment is also warranted against the accused and the lower appellate court has erred in interfering with the term of imprisonment imposed by the magistrate, and, it has to be corrected by this court in exercise of revisional jurisdiction, is the further submission of the complainant in support of the revisions filed by her. 4. This was a case where the accused, no doubt, denied the execution of the instrument and also of having any transaction with the complainant in relation to the cheques over which prosecution was Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 7 launched against him. The complainant would urge that the statutory presumption under Section 139 will be available even where execution is denied. I cannot agree. Statutory presumptions as covered under Section 139 or 118 of the NI Act would apply only where the execution of cheque is admitted or proved. Even in a case where there is denial of execution of the instrument, if on the materials tendered in the case execution of such instrument by the accused is proved, then, also the presumptions can be drawn, but, not otherwise. Both the courts below, on the materials placed, accepted the case of the complainant as regards the loan transaction between her and the accused and also the issue of three cheques for a total sum of `.10,00,000/- by him apart from handing over other documents also as security in relation to such transactions. The cheques involved arose from the account maintained by the accused is not a matter of dispute. In fact, he would admit one among the three cheques as duly executed by him, but, with a case that it was handed over to the husband of the complainant. Ext.P2 cheque for a sum of `.50,000/- was issued to the husband of the complainant when he received a loan of such sum from him was his defence. The learned magistrate has rightly and correctly taken note, in the payee column of Ext.P2 cheque the name of the complainant has been shown. If actually there was a transaction between the complainant and the husband of the complainant, why the name of the Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 8 complainant in Ext.P2 cheque was shown as the payee was in fact a material circumstance having a direct bearing over the transaction covered by not only of that cheque but all the transactions between the parties. No explanation was given by the accused why in Ext.P2 cheque the name of the complainant was shown if he had no money transaction with her. This has to be taken note of in the backdrop that when notices of dishonour were issued, not even a reply was sent by the accused after acknowledging them. He received not one notice, but, three notices, with all of them remaining unresponded after acknowledgment. The belated defence canvassed at the stage of trial that his transaction was only with the husband of the complainant, but, not with the complainant when one among the cheques produced demonstrating that the name of the complainant has been shown as the payee, with no explanation coming from the accused why it was so shown, goes a long way in showing that the defence projected by the accused was totally bereft of any value or merit. Further more, when a defence is set up by the accused to resist the prosecution launched against him, he has to show the defence is probable satisfying the test of preponderance of probabilities. The onus cast on the accused to establish his defence is much less when compared to that of the prosecution, which has to prove its case with unimpeachable legal evidence. The accused who has roped in the estranged husband of the Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 9 complainant to support his defence, and got him examined as one among his witnesses, strangely, evaded from the box to swear in support of his defence providing an opportunity to the complainant to test the veracity of his defence. He did not mount the box to swear in support of his defence is a telling circumstance which would further show the halowness of the defence projected by him to resist the prosecution. His father was examined as one of his witnesses to prove Ext.D1 receipt, would not advance the defence set up by him to resist the prosecution launched against him over the dishonoured cheques which arose from his account. In the context, it is also to be noted that the accused, who contended that two blank signed cheques were issued, perhaps, relating to Exts.P1 and P3, did not take any step to show that the writings on the relevant columns in those instruments had been filled up by a different hand and not by him. When such be the features evidenced on the materials placed in the case indicating unmistakably that the defence canvassed by the accused was worthy of no merit, as rightly found by both the courts, the conviction founded against him in the proved facts and circumstances of the case, concurrently, holding that the testimony of the complainant examined as PW1 is reliable, convincing and trustworthy and fully corroborated by the materials tendered in the case, is not liable to be disturbed in exercise of revisional jurisdiction. A finding of fact entered by the Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 10 inferior courts unless it is shown to be perverse or that it could not have been formed legitimately on the materials placed or it is totally unsustainable under law or facts, cannot be substituted in exercise of revisional jurisdiction even if on the materials a different view can also be formed. Even if such view appears to be a better one than what has been arrived at by the inferior court, still, if the view taken can also be formed on the materials, it cannot be interfered with. In short, the conviction of the accused, which found to be supported by unimpeachable legal evidence does not suffer from any infirmity, and it is only to be affirmed. 5. So far as the sentence imposed against the accused, examining them with reference to the challenges raised by the complainant that it is inadequate, I find that a court cannot be oblivious of the fact that the liability in money transaction covered by a cheque is in fact a civil liability. The dishonour of that instrument has been made a penal offence by way of amendment brought in the NI Act providing punishment against the offender thereof by itself cannot be taken as the basis in guiding or influencing the court in exercising its discretion over awarding sentence ignoring the fact that a civil liability arising under the transaction has become a penal offence. Though it may not be open to the drawer of an instrument to set up a defence that the dishonour of such instrument, later, was never in his contemplation, the Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 11 stark reality that dealings by use of cheques in commercial transactions are often done by bonafide cannot be lost sight of by the courts. So much so, while awarding sentence as against an offender found guilty of the offence under Section 138 of the NI Act in the absence of exceptional circumstances justifying his incarceration for a term, the ends of justice would suffice limiting the punishment to imprisonment till the rising of the court, providing adequate compensation to the complainant. In a proceeding under Section 138 of the NI Act, no complainant can insist what should be the sentence to be awarded to the offender for the primary reason that it is the discretion of the court, and none else. Further more, what is contemplated under Section 138 of the NI Act is of a summary nature where the drawer of an instrument proceeded against may not get adequate and sufficient opportunity as in a civil case to establish his contentions to resist the claim for decree. If the dispute is adjudicated in a civil forum, all matters connected with the transaction could be gone into by that court and it can determine what should be the quantum of compensation to be awarded. That is not the case when the drawer of an instrument is prosecuted on the dishonour of such instrument for the offence under Section 138 of the NI Act. Once the cheque issued by him gets dishonoured due to insufficiency of funds in the account maintained by him and the statutory requirements are complied with, the offence is complete. Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 12 Even a payment by him thereafter may not relieve him from the guilt that may arise on completion of the offence. That also has to be taken into account in examining the challenges raised over the inadequacy of the sentence awarded to the accused in the present case by the complainant. Considering the broader aspects involved in sentencing an offender under Section 138 of the NI Act, I do not find any impropriety in the modification of sentence made by the learned sessions Judge reducing the substantive term of imprisonment till rising of the court and awarding of compensation as fixed with the default terms of imprisonment there of. 6. The learned counsel for the petitioner at this stage requested for grant of further time for payment of the compensation awarded and, thus, avoid the default term of imprisonment. Having regard to the time lag after the commencement of the prosecution and the sum involved, I find that the request so canvassed for extension of time is prima facie not acceptable. However, taking into account the submissions made by the counsel pointing out the financial difficulties faced by the accused, I find, a short period as indicated hereunder can be granted. 7. Affirming the conviction and sentence imposed against the accused in all the three cases, as modified by the learned sessions Judge in appeal, petitioner/accused is directed to appear before the Crl.R.P Nos.3524 OF 2009, 3525 OF 2009, 3526 OF 2009, 3872 OF 2009, 3873 OF 2009 AND 3874 OF 2009 13 Additional Chief Judicial Magistrate, Thiruvananthapuram on 12-12-2011 to serve out the imprisonment till the rising of the court and to report payment of the compensation. The magistrate is directed to keep in abeyance the execution of sentence against the accused till the date fixed as above for his appearance. In default of his appearance and nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revisions 3524/2009, 3525/2009 and 3526/2009 are dismissed. Revisions 3872/2009, 3873/2009 and 3874/2009 also dismissed, but, subject to the directions given as above. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge