IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 3141 of 2006() --------------------------------------- CRA.643/2005 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM DATED 30.06.2006 IN CC.1177/2003 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- REJI JOB, S/O. JOB, AGED 38 YEARS, PATHADAN VEEDU, KUTHUKUZHI P.O., KOTHAMANGALAM. BY ADV. SRI.P.FAZIL SRI.SREEJITH V.S. RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------------------------------------------ 1. T.V.KURIAKOSE, THACHAMATTATHIL VEEDU, KOTHAMANGALAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY GOVERNMENT PLEADER SRI. THOMAS JOHN AMBOOKKEN ADV. SRI.SHAJI P.CHALY FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Rev.Pet.No. 3141 of 2006() ORDER ON Crl.M. APPLICATION NO. 8916 of 2006 inCrl.R.P.NO. 3141 of 2006 DISMISSED. SD/- M.N.KRISHNAN, JUDGE 14.10.2008. / TRUE COPY / PA TO JUDGE rhs M.N. KRISHNAN, J -------------------------- CRL.R.P. No. 3141 OF 2006 -------------------------------------- Dated this the 14th day of October, 2008 O R D E R This Revision is preferred against the judgment of the Addl. Sessions Judge, Ernakulam in Crl. Appeal No. 643/2005. The said appeal was preferred against the conviction and sentence passed by the Judicial First Class Magistrate Court, Kothamangalam in C.C. No. 1177/2003. The learned Magistrate convicted the accused and sentenced him to undergo Simple Imprisonment for a period of six months and to pay a compensation of Rs. 1,00,000/- and in default to undergo S.I for four months. The appellate court confirmed the conviction and modified the sentence and directed to undergo Imprisonment till rising of the court and to pay a compensation of Rs. 1,15,000/- under Section 357(3) of Criminal Procedure Code. It is against that decision the present revision is preferred. 2. The learned counsel for the Revision Petitioner very strongly contends before me that the materials available would not establish that the Revision Petitioner has borrowed an amount from the complainant and had issued a cheque towards the discharge of the liability. The case of the complainant is that the accused had Crl. R.P.No. 3141/2006 -2- borrowed a sum of Rs. 1,00,000/- and towards discharge of the liability had issued a cheque which when presented for encashment returned with an endorsement insufficiency of funds. The statutory notice was issued and later it was personally handed over to him, the accused did not pay back the amount. So the proceeding is initiated under Section 138 of the Negotiable Instrument Act. A reading of the judgment of the court below would reveal that the defence taken up by the accused is to the effect that he had joined a Kury jointly conducted by the complainant and his son and had bid the chitty for an amount of Rs. 70,000/- had issued a blank signed cheque and a blank signed stamp paper towards security and that have been used for the purpose of initiating this case. It is further contended that the mater was settled between the complaint's son and the accused. But the son did not give back the cheque. The courts below had analysed the evidence of PW1 who had deposed in tune with the complaint. He had stated about the execution of the cheque, the return of the cheque for insufficiency of funds etc. It is attempted to be discredited by examining DW1, DW2 and also D1 and D2. The gist of the evidence tendered by the accused in the case is that while the complainant was abroad, the Crl. R.P.No. 3141/2006 -3- accused had approached the son of the complainant namely Binu with his friend and had paid the amount and discharged the liability due under the Kuri transaction. In order to put effect to that contention the basic thing that is required is to adduce some tangible or acceptable evidence to establish that the complainant had run a Kuri as alleged by the accused. If a person joins a Kury it will be supported by a Kuri Variola and other documents and it will be in the custody of the person who had joined the Kuri. When such solid documents are expected to be available, the non production of the same is suspicious. A receipt which does not show the name of the person who had issued it cannot be taken as an acceptable evidence in the case. When the execution of the cheque is proved then there is a presumption under the Negotiable Instrument Act regarding the passing of consideration. The evidence of PW1 has been analysed by the courts below and they had arrived at a decision regarding execution of the cheque. I am concious of the fact that mere admission of a signature in a blank paper does not amount to admission of execution of a document. But the courts below accepted the evidence of PW1 to arrive at a decision that Ext. P1 cheque has been executed by the accused in Crl. R.P.No. 3141/2006 -4- favour of the complainant. Normally in a criminal case one need not worry about defence version and defence is not expected to prove the case. But when the defence takes up the task of proving the same thing and fails to do it as held by this Court in 138 case, the court can certainly look into to it for analysing the matter. So after analysing the entire materials court below arrived at a decision regarding offence committed by the accused under Section 138 of the Negotiable Instrument Act. Therefore I do not find any illegality, irregularity and impropriety committed by the court below in arriving such a decision. The order of conviction does not call for any interference. 3. Now turning to the quantum of punishment namely the sentence. It has to be stated that the appellate court has shown mercy on the accused by reducing the imprisonment till rising of the court and had also directed to pay compensation of Rs. 1,15,000/-. The cheque amount is Rs. 1,00,000/-. I am inclined to modify the same by directing to pay fine instead of compensation under Section 357(3). I reduce the amount to Rs. 1,00,000/- Therefore the revision is disposed of as follows: 1. The conviction under Section 138 is confirmed. Crl. R.P.No. 3141/2006 -5- 2. The Revision Petitioner/accused is sentenced to undergo Simple Imprisonment till rising of the court and directed to pay fine of Rs. 1,00,000/- which on realisation be paid to the complaint in the case. In case of default of payment of fine, the Revision Petitioner/accused shall undergo Simple Imprisonment for a period of two months. 3. The Revision Petitioner/accused is directed to appear before the Trial Court for receiving the sentence on 14.1.2009 and also to pay fine. In case of failure the sentence has to be executed by the court below. M.N. KRISHNAN, JUDGE vkm