IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.Rev.Pet.No. 3349 of 2010() ------------------------------ CRA.780/2008 of II ADDL. SESSIONS COURT, PALAKKAD ST.3153/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- LAKSHMANAN, S/O.KANNAN, AGED 63 YEARS, KONDAPADAM, N.S.S.ENGINEERING COLLEGE POST, AKATHETHARA, PALAKKAD. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. HANEEFA, S/O.KOYA RAWTHER, SHABINE MANZIL, SOORYA NAGAR, N.S.S.ENGINEERING COLLEGE POST, AKETHETHARA, PALAKKAD. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3349 of 2010 ------------------------------- Dated this the 16th day of November, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.65,000/- and towards the discharge of the said liability, the accused issued a cheque dated 19.10.2007 for a sum of Rs.65,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court- III, Palakkad, by filing a formal complaint, upon which cognizance 2 Crl. R.P.No.3349 of 2010 was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.3155/07. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4 were marked. From the side of the defence, DW1 was examined and no documentary evidence adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/ revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to pay a fine of Rs.65,000/-, failing which the revision petitioner was directed to undergo simple imprisonment for 1 month. It is also ordered that if the fine amount is realised, the same shall be paid to the complainant as compensation u/s.357 3 Crl. R.P.No.3349 of 2010 (1)(b) of Cr.P.C. 3. Aggrieved by the order of conviction and sentence, challenging the judgment of the trial court, though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 21.7.2010 in Crl.A.780/08, the Court of Sessions Judge-Palakkad, dismissed the appeal, confirming the conviction and sentence imposed against the accused by the trial court. It is the above conviction and sentence challenged in this revision petition. 4. I have heard Adv.Sri.Rajesh Sivaramankutty, the learned counsel appearing for the revision petitioner and I have also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner vehemently argued that the complainant has miserably failed to establish the case against the revision petitioner and absolutely no evidence was adduced by the complainant to establish as to how and when the transaction was taken place. Therefore according to the learned counsel, the findings arrived on by the 4 Crl. R.P.No.3349 of 2010 courts below, in favour of the complainant is liable to be set aside. It is also the submission of the learned counsel that, the accused by producing cogent and convincing evidence, rebutted the presumption but the courts below miserably failed to appreciate the defence evidence in its true perspectiveness and therefore the conviction and sentence imposed against the revision petitioner is liable to be set aside. Along with the revision petition, the revision petitioner had also produced Annexure A complaint dated 12.3.2008 filed before the Court of the Judicial First Class Magistrate-III, Palakkad. It is the contention of the learned counsel that the defence version was substantiated through the evidence of DW1 and also through the statement furnished by the accused during his examination u/s.313 of Cr.P.C. The specific plea set up by the accused is to the effect that, he had no transaction with the complainant and according to the defence, he had borrowed a sum of Rs.3,000/- from DW1 and the said amount was repaid during the month of May 2005 but prior to that, when DW1 demanded back the 5 Crl. R.P.No.3349 of 2010 money, the accused issued a cheque to him. It is the above cheque misused by the complainant for filing the present complaint. In order to prove the above facts and defence, the revision petitioner very much relied upon the evidence of DW1. Both the courts below elaborately considered the evidence of DW1 and found against the revision petitioner. It is on the basis of such evidence, the learned counsel for the revision petitioner sought the interference of this court with the findings of the courts below. 6. I have carefully considered the contentions advanced by the learned counsel for the revision petitioner and also perused the judgments of both the courts below. The specific case of the complainant is that the accused borrowed a sum of Rs.65,000/- from the complainant and towards the discharge of the said liability the accused issued the cheque in question. In support of the above claim and the transaction, the complainant himself mounted to the box and gave oral evidence and he was subjected to cross examination and during which also, he had 6 Crl. R.P.No.3349 of 2010 deposed regarding the claim and the allegation contained in the complaint. This court in a decision reported in, Johnson Scaria Vs. State of Kerala {2006(4) KLT 290}, has held that, “the burden is always on the prosecution to prove the offence against an indictee in all executions and a prosecution u/s.138 of Negotiable Instruments Act is no exception to that general rule. Execution and issue of the cheque have to be proved to draw the presumption u/s.139 of Negotiable Instruments Act and S.139 does not shift the burden to prove execution and issue of the cheque. Admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes the long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But u/s.114 of the Evidence Act appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered”. In the very same decision cited above, this court has also held 7 Crl. R.P.No.3349 of 2010 that, “the presumption will live, exist and survive and shall vanish only when the “contrary proved” by the accused”. In the light of the above decision, the question to be examined is, 'whether the defence has succeeded in giving atleast a probable explanation as to how the cheque in question reached in the hands of the complainant'. Though the case of the accused is to the effect that, the cheque in question was handed over to DW1, absolutely there is no contemporary document or any independent evidence to substantiate the above version. Admittedly, DW1 is a close friend of the accused. There is no explanation for giving a blank cheque even for a sum of Rs.3,000/-, if DW1 is a close friend of the accused. It can also be seen that there is no explanation for not getting back the cheque in question, in the light of the claim of the accused that he had repaid the amount to DW1. The only explanation is to the effect that the accused was told by DW1 that the cheque which entrusted with DW1 is lost. But the above explanation also can not be accepted because there is no timely action from 8 Crl. R.P.No.3349 of 2010 the part of the revision petitioner against encashing the cheque by some body, though he came to know that the cheque which contained his signature but does not contain the amount or the date, lost from DW1. If the said explanation is true and correct, it was incumbent on the part of the accused to inform his bank not to honour the cheque, if the same is presented for encashment. No such step was taken by the revision petitioner at appropriate time. So absolutely there is no evidence to show that the cheque in question is the one which entrusted with DW1. 7. Another point raised by the learned counsel is to the effect that, immediately after receiving the notice from the complainant, the accused has filed a complaint before the Dy.S.P. and even DW1 has admitted that, he himself and the accused as well as DW1 were summoned to the office of Dy.S.P. and the matter was settled therein itself. But apart from the mere explanation, absolutely there is no contemporary documents or independent evidence to substantiate the above 9 Crl. R.P.No.3349 of 2010 version. If actually a complaint was filed before the Dy.S.P. and the matter was settled therein, naturally there would be appropriate endorsement in the petition register or some other books kept in the office of the Dy.S.P. and if the settlement was true, the same could have been established by summoning those documents from the office of the Dy.S.P. or by examining any witness including the Dy.S.P. But in this case, no such step was taken and as such there is no evidence to substantiate the plea that he had filed a complaint before the Dy.S.P. and the matter was settled thereon. In the absence of any evidence or convincing explanation to substantiate the defence version, I am of the view that, the trial court as well as the appellate court is perfectly correct and legal in rejecting the defence version and holding that the accused has not succeeded in rebutting the presumption. Therefore, I find no reason to interfere with the concurrent findings of the courts below, as such there is no merit in this revision petition. 8. As this court is not inclined to interfere with the 10 Crl. R.P.No.3349 of 2010 conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but while granting some time to pay the fine, according to me, the amount can be enhanced slightly considering the fact that the cheque in question is dated 19.10.2007 that too for an amount of Rs.65,000/-, which belonged to the complainant, but the same is with the revision petitioner for the last 3 years. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence to pay fine, the amount is enhanced to the tune of Rs.84,500/-, which shall be deposited within 3 months from today and in case of default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 2 11 Crl. R.P.No.3349 of 2010 months. Accordingly, the revision petitioner is directed to pay the enhanced fine amount on or before 17.2.2011. In case, any failure on the part of the revision petitioner in paying the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. On realisation of the fine amount, a sum of Rs.80,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. The execution of warrant if any, pending against the revision petitioner shall be deferred till 17.2.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/