IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.Rev.Pet.No. 2012 of 2006() ------------------------------ CRA.118/2000 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY CC.368/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P.B. KUNHAMMAD, S/O. KUNHABDULLA HAJI, CARAPRATH HOUSE, ENGERI AMSOM, PERODE P.O., VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. 2. ABDUL RAHIMAN, S/O. ABDULLA HAJI, P.O. KADAVATHOOR, KANNUR DISTRICT. ADV. SRI.V.CHITAMBARESH FOR R2 SRI.T.C.SURESH MENON FOR R2 PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2012 of 2006 -------------------------------------- Dated this the 28th day of July, 2009. ORDER Courts below concurrently found that petitioner issued Ext.P1, cheque dated 30.5.1999 for the sum of Rs.4,40,000/- for the discharge of a liability towards respondent No.2. That concurrent finding is challenged in this revision. 2. Respondent No.2 filed complaint in the court of learned Additional Chief Judicial Magistrate , Thalassery in C.C.No.368 of 1999 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). His case in the complaint and notice which preceded that complaint (as seen from Ext.P5, copy of notice) is that petitioner borrowed Rs.4,40,000/- from him and for repayment of that amount, issued the cheque. Dishonour of that cheque for insufficiency of funds is not in dispute and proved by Exts.P2 and P3 and the evidence of PW1, manager of the drawee bank. There is also no dispute that statutory notice was served on petitioner, as proved by Exts.P5 to P7. Though petitioner when questioned under Section 313 of the Code of Criminal Procedure did not own it up, Ext.P8, reply has been sent on his behalf by counsel. Respondent No.2 was not satisfied with that reply and preferred the complaint. He gave evidence as PW2 and referred to the transaction leading to the execution of the cheque. He also proved Ext.P4, agreement dated nil said to be executed by petitioner in his favour. According to the petitioner, he had no Crl.R.P.No.2012/2006 2 transaction of any sort with respondent No.2 and instead, had been a guarantor for a vehicle loan availed by respondent No.2 from M/s.Sreenath Financiers, chennai and in connection with that transaction he had given a signed blank cheque to respondent No.2 which has been misused by the latter. Petitioner examined DW1, claimed to be the agent of M/s.Sreenath Financiers. Courts below were not impressed by the contention raised by the petitioner and found him guilty. It is contended by learned counsel that conviction of petitioner is not legal or proper. According to the learned counsel there is no consistent case for respondent No.2 regarding the alleged transaction which resulted in the alleged execution of the cheque (Ext.P1). That, according to the learned counsel destroyed the case of respondent No.2. Learned counsel has placed reliance on the decisions in Bindu v. Sreekantan Nair (2007(1) KLT 525) and Krishna Janardhan Bhat v. Dattatraya Hegde (2008 (1) KLT 425). The further argument of learned counsel is that there is no evidence to show that during the relevant time respondent No.2 had sufficient funds with him to advance a loan of Rs.4,40,000/-. Counsel for respondent No.2 supported the concurrent finding entered by courts below. 3. It is not disputed that Exts.P1 and P4 contained the signature of petitioner though the rest of the entries in those documents are disputed by him. As held in Krishna Janardhan Bhat v. Dattatraya Hegde mere admission or proof of signature in the document cannot tantamount to Crl.R.P.No.2012/2006 3 admission or proof of the document as such since the admission or proof must relate to the document as such. Therefore the mere fact that petitioner has admitted his signature in Exts.P1 and P4 are not sufficient for respondent No.2 to contend that execution of those documents has been admitted by the petitioner. Its execution has to be proved by respondent No.2. 4. Case pleaded by respondent No.2 in the complaint as well as in Ext.P5, copy of notice is that petitioner had borrowed Rs.4,40,000/- from him and for repayment of that amount issued the cheque. In the evidence respondent No.2 (as PW2) stated that in December, 1998 petitioner had agreed to transfer his 5% share in M/s.Ponmalika Jewellery, Thalassery, a partnership firm and in connection with that transaction, respondent No.2 (PW2) gave Rs.4,40,000/- to the petitioner in two instalments in December, 1998 itself. As per the understanding respondent No.2 was to pay the balance amount when his name is entered in the partnership deed before 31.3.1999. In February, (2000) petitioner demanded a further sum of Rupees two lakhs which ofcourse respondent No.2 was not agreeable to pay and thereon the latter demanded repayment of the sum of Rs.4,40,000/- already paid to petitioner. Petitioner requested time for repayment till 31.5.2000. Respondent No.2 demanded a document for that. Petitioner executed Ext.P4, agreement in his favour and gave Ext.P1, cheque dated 30.5.1999 according to respondent No.2, for repayment of the amount. That cheque on presentation was dishonoured as above stated. In cross examination he stated that he had other transactions also Crl.R.P.No.2012/2006 4 with petitioner and admitted that petitioner had been a guarantor for a vehicle loan he had availed from M/s.Sreenath Financiers. He further admitted that petitioner had been a similar guarantor for his brother, Ahamed. DW1, agent of M/s.Sreenath Financiers stated that he had arranged loan for a car belonging to respondent No.2. but he could not say whether the loan was taken from M/s.Sreenath Financiers. He does not also remember whether petitioner was a guarantor in that loan transaction. At another stage he stated that loan was taken for a vehicle in the name of petitioner. He would say that he just introduced the loanee to the financier and does not know anything further about that transaction. Ext.D1 is a postal card issued to the petitioner. 5. In Ex.P4, the agreement which does not bear a date which according to respondent No.2 is executed by the petitioner it is stated as if petitioner had availed a loan of Rs.4,40,000/- from respondent No.2 and in Ext.P8, reply what petitioner is seen to have informed respondent No.2 is that he had been a mediator in the matter of respondent No.2 purchasing shares of M/s.Ponmalika Jewellery from one Ahamed and that since respondent No.2 was not able to pay the entire amount as claimed by said Ahamed the former withdrew from that transaction. It is also stated in Ext.P8 that petitioner owed some amount to respondent No.2 and that the amount was given by petitioner to respondent No.2 and the said amount was given by respondent No.2 to the said Ahamed by way of advance. According to the petitioner the cheque given to respondent No.2 in connection with a vehicle loan was misused. Crl.R.P.No.2012/2006 5 6. It is true that as against what is stated in the complaint and Ext.P5, copy of notice respondent No.2 in his evidence as PW2 has stated about the transaction in respect of purchase of shares of M/s.Ponmalika Jewellery. There is also no evidence to show that petitioner is or was a partner in the said partnership. Now the question is not whether petitioner was or is a partner of the said partnership but whether the cheque is supported by consideration and issued for the discharge of a legally enforceable debt/liability. I am not inclined to think that the averments in the complaint and Ext.P5, copy of notice and what is stated by PW2 in the evidence is contradictory. Consistent claim of respondent No.2 (PW2) is that a sum of Rs.4,40,000/- was given to the petitioner and for repayment of that amount, petitioner issued the cheque. So called improvement made by respondent No.2 in his evidence as PW2 is only as to the circumstances in which the said sum of Rs.4,40,000/- was allegedly advanced to the petitioner and was due to him. That in my view does not in any way affect the case of respondent No.2 if it is otherwise acceptable. The court is concerned with the question whether the cheque is supported by consideration as claimed by respondent No.2. In that matter, I am persuaded to think that there is no contradiction or inconsistency. It is also to be remembered that Ext.P4, agreement was allegedly executed by the petitioner, according to respondent No.2 when he realized that transaction he stated in his evidence concerning transfer of shares of M/s.Ponmalika Jewellery will not go through and petitioner, according to him agreed to return the amount. At that point of Crl.R.P.No.2012/2006 6 time petitioner, according to respondent No.2 was liable to return the sum of Rs.4,40,000/- he had received by way of advance. It is thereafter that notice was issued stating that petitioner owed Rs.4,40,000/- having been borrowed from respondent No.2. Considering the circumstances in which Ext.P4, agreement was allegedly executed and that notice was issued thereafter when the relationship between petitioner and respondent No.2 was only that of debtor and creditor I am not persuaded to think that there is any inconsistency or contradiction in the evidence of respondent No.2. 7. Then the question is whether Exts.P1 and Ext.P4 are executed by petitioner. As aforesaid, it is not disputed that these documents contained the signature of the petitioner. So far as Ext.P4 is concerned, respondent No.2 asserted that it is written in the handwriting of petitioner himself. True it was suggested to respondent No.2 that Ext.P4 is not in the handwriting of petitioner. According to the petitioner, in the light of denial of execution of Ext.P4 respondent No.2 was bound to examine the attestors in Ext.P4. The only mode of proof of document is not by examination of the attestors. Going by the version of respondent No.2 that document was executed by petitioner in his favour and therefore he is competent to prove its due execution. That proof is rendered by respondent No.2 by giving evidence and introducing Ext.P4 in evidence. Petitioner was not able to successfully contradict the evidence of respondent No.2 that Ext.P4 is in the handwriting of petitioner. I am also not inclined to think that whenever a denial is made, the person putting Crl.R.P.No.2012/2006 7 up the document is bound to send the document for expert opinion. Courts below found that there is no reason to disbelieve the evidence of respondent No.2 regarding the execution of Ext.P4. 8. So far as Ext.P1 is concerned, it is not disputed that it is drawn on the account maintained by petitioner. In such a situation and particularly as it is admitted by petitioner that it contained his signature he had to prove or probabilise the circumstances under which the cheque happened to be in the custody of respondent No.2. In proof of that, petitioner examined DW1. But evidence of DW1 does not show that there was any dealing between him, petitioner and respondent No.2 in connection with the loan. He would say that he just introduced the loanee to the financier and kept his hands off. At any rate, there is no evidence to show that in connection with the loan transaction petitioner had handed over signed blank cheque either, to respondent No.2 or to DW1. There is also no possibility of petitioner giving signed blank cheque to either of them since the loan was availed from M/s.Sreenath Financiers and therefore the signed blank cheque if any should have been given to that financier. There is no case or evidence that signed blank cheque was given to respondent No.2 in connection with the loan transaction and that signed blank cheque leaf was withheld by him with ulterior motive. It was not even suggested to DW1 that he had taken signed blank cheque from the petitioner in connection with the loan and the same was handed over to respondent No.2. That possibility is also remote, if at all DW1 had taken signed blank cheque from Crl.R.P.No.2012/2006 8 petitioner since in that case he did so on behalf of his principal, the financier and should have handed over the same to the principal rather than handing over the same to respondent No.2. These circumstances are also to be taken into account while considering the evidence of respondent No.2 that petitioner issued the cheque for discharge of a legally enforceable debt/liability. 9. It is further contended by learned counsel that respondent No.2 was not having sufficient funds to pay the sum of Rs.4,40,000/-. Learned counsel submits that the very fact that respondent No.2 had availed vehicle loan from M/s.Sreenath Financiers indicated that he was not having sufficient means. Respondent No.2 stated that he had accounts in two banks. Apart from that respondent No.2 had availed a vehicle loan from M/s.Sreenath Financiers, there is nothing on record to show that he was incapable of raising the sum of Rs.4,40,000/-. At least in Ext.P8, reply petitioner admitted that he had some financial transaction with respondent No.2 and the money he had received was repaid to respondent No.2 which according to him was given to Ahamed by respondent No.2 as advance payment for purchase of shares. Therefore it is not as if respondent No.2 was incapable of raising funds. 10. It is true that when examined, respondent No.2 admitted that petitioner had not written the name of payee in Ext.P1. He has an explanation for that it was because he thought that he may to go abroad in which case he wanted the cheque to be encashed through his brother, if the amount was not paid. There is nothing wrong or illegal in respondent No.2 writing the name of Crl.R.P.No.2012/2006 9 himself as payee and presenting the cheque. On going through the evidence I find no reason to interfere with the concurrent finding entered by the courts below as to the due execution of the cheque. Presumption under Section 139 of the Act follows. Petitioner has not succeeded in rebutting the presumption under Section 139 of the Act. As such I do not find reason to interfere with the conviction of petitioner. 11. In modification of the sentence imposed by the learned Additional Chief Judicial Magistrate, appellate court has imposed substantive sentence of imprisonment till rising of the court. Along with that there is a direction to pay Rs.4,40,000/- by way of compensation to respondent No.2 and a default sentence of imprisonment for three months. Having regard to the nature of offence and amount involved I find no reason to interfere with the sentence as modified by the appellate court or the direction for payment of compensation and default sentence. 12. Learned counsel requested that petitioner may be granted six months time to deposit compensation. Counsel stated that petitioner is not able to raise the amount immediately. Having regard to the circumstances stated by learned counsel I am inclined to grant time to the petitioner till 30.12.2009 to deposit compensation. Crl.R.P.No.2012/2006 10 Resultantly, this revision fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit compensation. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks