IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.Rev.Pet.No. 239 of 2001() ----------------------------- CRA.209/1996 of SESSIONS COURT, KOTTAYAM ST.1431/1993 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): --------------------- RADHAKRISHNAN NAIR, VALIYAKULANGARAMATTAM VEEDU, MARUTHORVATTOMBHAGAM, CHERTHALA. BY ADV. SRI.P.V.VIJAYAKUMAR RESPONDENT(S): --------------- 1. G.G.VENUGOPALAN NAIR, S/O.GOPALAKRISHNAN NAIR, VADAKKEKARA HOUSE, PADINJAREMURIKKARA, VADAKKEMURI VILLAGE, VAIKOM. 2.STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.RADHAKRISHNAN FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.239 of 2001 ----------------------------------------- Dated this the 27th July, 2009 JUDGMENT This revision petitioner was convicted and sentenced by the Magistrate Court under Section 138 of the Negotiable Instruments Act. In appeal, the conviction was confirmed but the sentence is modified. Instead of payment of fine, Rs.45,000/- was ordered to be paid as compensation under Section 357(3) Cr.P.C. The said conviction and sentence are challenged in this revision. 2. First respondent herein lodged a complaint before the Magistrate Court alleging that the accused borrowed Rs.30,000/- from him and issued Exhibit P1 cheque dated 15.4.1993, drawn on his account maintained in the bank and on presentation, it was dishonoured (vide Exhibit P2 memo) with an endorsement, “insufficient funds” on 27.4.1993 and a notice was issued informing him of the dishonour and demanding payment of the amount. The revision petitioner received the same as per Exhibit P3 postal acknowledgment, Crl.RP.239/01 2 but he did not pay the amount and thereby he committed an offence under Section 138 of the N.I Act. 3. PW1 was examined and Exhibits P1 to P3 were marked. Accused did not adduce any evidence. While questioned under Section 313 Cr.P.C, he did not make any specific statement regarding the transaction. Both the courts below found that the evidence establishes that the petitioner issued Exhibit P1 cheque and all the ingredients of the offence and thereby he committed the offence. 4. Heard. Perused records. Learned counsel for petitioner submitted that there is a suspicious circumstance relating to the transaction alleged in the complaint. PW1 deposed that the amount was borrowed on 15.4.1993 and on the same day, the cheque was issued and it is Exhibit P1. Execution of the cheque is to be proved by the complainant and he cited a decision reported in Bhaskaran Nair v. Mohanan (2009(2) KLT 897) in support of his argument. It is also argued that prosecution has not established its case beyond reasonable doubt and the conviction cannot be sustained. Crl.RP.239/01 3 5. Learned counsel for first respondent argued that this is a case where the complainant established his case beyond reasonable doubt. He deposed that Exhibit P1 cheque dated 15.4.1993 was handed over to accused, after borrowing Rs.30,000/- from him. The execution of the cheque is not denied by accused either at the time of cross-examination or while questioned under Section 313 Cr.P.C. In fact, he stated at the time of question under Section 313 Cr.P.C that he signed Exhibit P1 cheque, it is pointed out. Nothing is brought out from the evidence of PW1 to show that the amount was not paid by the complainant to the accused. In such circumstances, the conviction can only be sustained, it is argued. 6. On going through the judgment of the courts below, I find that lower appellate court has found that the appellant has no case that he did not issue Exhibit P1 cheque or that it was issued under any other circumstance than what is alleged by the first respondent. The court below appreciated the evidence of PW1 in the proper perspective and held that the evidence of PW1relating to borrowing money and execution of Crl.RP.239/01 4 cheque towards repayment of the loan can be accepted. The lower appellate court also took into consideration the fact that revision petitioner did not deny execution of cheque, but admitted that he issued Exhibit P1 cheque while questioned under Section 313 Cr.P.C. The lower court also drew presumption under Sections 118 and 139 of the N.I Act in favour of the complainant and it is held that it is for petitioner to prove that Exhibit P1 cheque is not supported by consideration, but, there was no such evidence. 7. I do not find any infirmity, impropriety or illegality in any of the findings in the lower appellate court. The evidence of PW1 itself establishes that petitioner had borrowed Rs.30,000/- and as against discharge of the said debt, he had issued Exhibit P1 cheque. The evidence of pW1 is not discredited in cross-examination. It only appears that there was a suggestion that there is no consideration for the cheque, but it was denied. A mere suggestion will not be sufficient to rebut presumption under Section 118 of the N.I Act as rightly held by lower appellate court. The revision petitioner has not rebutted the presumption. The evidence of PW1 remains Crl.RP.239/01 5 discredited and it is sufficient to establish that a cheque was issued for discharge of the liability or debt. I do not find any reason to interfere with the conviction. 8. Learned counsel for revision petitioner submitted that leniency may be shown in the sentence awarded. Petitioner has already deposited some amount in court and he is prepared to pay Rs.5,000/- more as compensation and the sentence may be reduced, it is submitted. 9. On hearing both sides, I find that the sentence can be modified, taking into consideration the facts and circumstances of this case. Hence, the following order is passed: (i) The conviction passed against the petitioner under Section 138 of the Negotiable Instruments Act is confirmed. (ii) In modification of the sentence passed, the petitioner is sentenced to undergo imprisonment till rising of the court and to pay a compensation of Rs.50,000/- to the complainant-first Crl.RP.239/01 6 respondent under Section 357(3) Cr.P.C and in default of payment of the compensation, he shall also undergo simple imprisonment for one month (vide Bhaskaran Nair v. Mohanan (2009(2) KLT 897) ). (iii) The accused shall appear before the trial court on receipt of notice to his counsel from the trial court. The Criminal Revision Petition is partly allowed. K.HEMA, JUDGE vgs. Crl.RP.239/01 7 K.HEMA, J. ------------------------------ Crl.R.P.NO.239 of 2001 ------------------------------ O R D E R Dated 27th July, 2009.