IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 Crl.Rev.Pet.No. 1156 of 2008() ------------------------------ CRA.650/2005 of III ADDL.SESSIONS COURT, ERNAKULAM CC.1059/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------- ARUN MATHEW THOMAS, AGED 42 YEARS, S/O.DR.THOMAS MATHEW, PALM COURT, IDUKKI ROAD, THODUPUZHA. BY ADV. SRI.S.RAJEEV RESPONDENTS: RESPONDENTS/STATE & COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MAJO V.KURIAKOSE, VICHATTU VEEDU, PURAPPUZHA, THODUPUZHA. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR SRI.B.MOHANLAL FOR R.2 SRI.SAIJU. S FOR R.2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No. 1156 of 2008 ................................................ Dated: 11-06-2008 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in C.C. No. 1059 of 2001 on the file of the J.F.C.M., Muvattupuzha, challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. I heard the learned counsel for the Revision Petitioner and the learned counsel for the 2nd respondent/complainant. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheques in question were drawn by the petitioner in favour of the complainant on the drawee bank, that the cheques were validly presented to the bank, that they were dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the Act and that the Revision Petitioner/accused failed to make the payment Crl.R.P. No. 1156 of 2008 -:2:- within 15 days of receipt of the statutory notice. 4. The learned counsel appearing for the revision petitioner made the following further submissions before me in support of the Revision:- Eventhough the complainant examined as P.W.1 who denied Ext.D2 complaint filed by him before the Dy. S.P., Thodupuzha the accused examined the Dy.S.P. Thoupuzha, as D.W.1 and proved Ext.D2 complaint in which it is unambiguously admitted that on 15-2- 2000 he had advanced a sum of Rs. 3,00,000/- to the accused who undertook to repay the same after six months and after the expiry of the said period of six months when he approached the accused for the amount, the accused behaved in a totally irresponsible way and had even abused the complainant. If as a matter of fact, on 15-08- 2000 when the accused had failed to repay the said amount of Rs. 3,00,000/- it is highly improbable that on 4-9-2000 the complainant would have paid a further amount of Rs. 3,75,000/- to the accused at a time when the parties were not on good terms. This aspect of the matter assumes importance in the light of the recent pronouncement of the Apex court in Krishna Janardhan Bhat v Dattatraya Hegde - 2008 (1) KLT 425 (SC) wherein interpreting Sec. 139 of the Negotiable Instruments Act , 1881, it has been held that the said provision merely raises a presumption with regard to Crl.R.P. No. 1156 of 2008 -:3:- the fact that the cheque was drawn from the account of the bank for discharging the whole or in part of any debt or liability which pre- supposes a legally enforceable debt and that presumption does not absolve the complainant from proving the existence of a legally enforceable debt. 5. I am afraid that I cannot agree with the above submissions. D.W.1 the Dy.S.P. has clearly admitted that he does not know whether the transaction referred to in Ext.D2 complaint pertains to the transaction covered by Exts.P1 and P2 cheques . The revision petitioner is the only person who wants to rely on the averments in Ext.D2 complaint. So, it was for him to prove the facts recorded in Ext.D2 complaint. For reasons best known to him he did not mount the witness box. In Ext.D2 complaint what P.W.1 stated is that the accused borrowed a sum of Rs. 3,00,000/- on 15-2-2000 agreeing to repay the same within six months which period would expire on 15-8- 2000. That was a borrowal which was not supported by any cheque or other document. But that is not the position with regard to the transaction covered by Exts.P1 and P2 cheques. P.W.1 had the security of Exts.P1 and P2 cheques for Rs. 3,00,000/- and Rs. 3,75,000/- respectively and in the event of any default by the accused P.W.1 could very well prosecute him for non-payment of the money in case the cheques were dishonoured. In fact, those cheques were Crl.R.P. No. 1156 of 2008 -:4:- dishonoured and that explains the prosecution in this case. Krishna Janardhan Bhat v Dattatraya Hegde was rendered in a totally different factual setting. When the very purpose of the presumption under Sec. 139 of the Act is to absolve the complainant from the necessity of proving that the cheque was issued in discharge of an antecedent debt or liability, it may not be correct to say that the complainant will have to prove the existence of a legally enforceable debt, as contended by the revision petitioner. The trial court who had the unique advantage of seeing the witness and assessing their credibility was not inclined to accept the defence set up by the revision petitioner. The lower appellate court has also rejected the said defence. This Court sitting in revision will be loathe to interfere with the said conclusion reached by the courts below. The conviction was thus rightly entered against the petitioner. 4. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. Accordingly, for Crl.R.P. No. 1156 of 2008 -:5:- the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs. 3,10,000/- (Rupees three lakh ten thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within seven months from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period he shall suffer simple imprisonment for three months by way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. V. RAMKUMAR, JUDGE. ani/-