IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 54 of 2004(B) ---------------------------------------- CRL.A.355/2002 of SESSIONS COURT, MANJERI CC.93/2001 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM ............................................................................. REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------- 1. SULAIKHA, W/O. VALAYANGADAN MOOSAPPU, P.O. OORAKAM KEEZHMURI, MALAPPURAM DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT(S)/ RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------ 1. THOTTASSERI MUHAMMED KUTTY, S/O.KUNHAHAMMED, OORAKAM, KEEZHMURI, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.K.R.KURUP FOR R1 SRI.C.R.SYAMKUMAR FOR R1 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.R.P.No.54 OF 2004 -------------------------- Dated this the 3rd day of July, 2009 O R D E R ~~~~~~~~~ This revision petition is preferred against the conviction and sentence passed in Crl.A.No.355/02 by the Sessions Judge, Manjeri. In turn the said appeal was preferred against the conviction and sentence passed by the Judicial First Class Magistrate, Malappuram. The short facts are as follows :- The accused had borrowed a sum of Rs.2,20,000/- from the complainant for the purchase of the property and towards the discharge of the same had issued a cheque. which when presented for encashment returned with endorsement `insufficiency of funds'. Thereafter statutory notice was issued which was replied. The amount was not paid and hence prosecution launched. On the other hand, the defence is almost of a total denial. Neither the execution nor the borrowal of the amount as admitted. The trend of the defence appears to be that, the cheque book had been taken away by the complainant 2 CRL.R.P.No.54 OF 2004 and a case is initiated of this nature. Both the courts below appreciated the evidence of PW1 and DW1 and arrived at a decision in favour of the complainant. The learned counsel for the appellant had pin-pointedly argued that, in S.138 Negotiable Instruments Act cases, the burden is always on the complainant to prove the case beyond doubt and preponderance of probability of S.138 case, is to be on the side of the accused and it shall not be sufficient in the case of the complainant and when these principles are applied in the light of the decision reported in Krishna Janardhan Bhat V. Dattatraya Hegde [ 2008(1) KLT 425 ] it has to be held that the case of the prosecution is not proved at all. It is true that the trial u/s.138 is of a criminal nature. But invariably the transaction has always got a colour of a civil nature. I am also conscious of the fact that, when a case is registered, the court can not compel the accused to come and give evidence and the court can not commend upon the absence of evidence tendered by the accused. So with these principles, let us try to analyse the 3 CRL.R.P.No.54 OF 2004 evidence available before the court. PW1 is the complainant. He had deposed before the court that the accused's husband and he were working together in gulf countries and in 1998 both the husband and wife came to him, for the purpose of getting some amount for purchase of the property, very near the house of the complainant. The complainant advanced Rs.2,20,000/-. The time fixed for repayment was six months. It was not paid. Then the husband and wife came together and issued a cheque and thus the transaction and the cause of action for the initiation of the proceedings. It is a fact that the husband of the accused and the complainant were working together in gulf countries and they were living as room mates. It has also to be stated that PW1 had deposed before the court about how the transaction took place and he had clearly stated that, it was on the basis of the faith he had handed over the money. It is true that he has deposed that, the amount which he had advanced, is partly the amount which his brother had given and the remaining by pledging the ornaments of his wife. Nowhere in 4 CRL.R.P.No.54 OF 2004 the cross examination, a suggestion is put to the effect that the complainant does not have the resources to advance the amount. He had also spoken about the fact that the property purchased by the accused and her husband is near to his house. So it is in this backdrop, the evidence of PW1 requires consideration. Now I may also refer to the evidence tendered by the husband of the accused. He would depose that he knows the complainant. He also admits that they have worked together in the gulf countries and both of them belong to the same place. It is his case that he had purchased a taxi jeep and his attempt to explain the custody of the cheque with the complainant is as follows :- It is his version that, he used to keep the cheque book of his wife in his vehicle and the complainant used to call that vehicle for hire and he used to park that vehicle near the house of the complainant. According to him, he used to place the papers of the vehicle and the cheque in the complainant's house, when he wants to clean or wash the vehicle. So here is another line of thinking, put to the 5 CRL.R.P.No.54 OF 2004 court, to consider regarding the transaction. Admittedly the cheque leaf belongs to the wife of DW1. The contention that there is difference in signature in the cheque and that in the vakalath and 313 statement can not detain as long, for the reason that by reply notice itself the accused had denied the transaction. So the mental state of the accused can be clearly seen from that attitude and so any signature put up thereafter can not be considered as proper, for the purpose of comparing the signature. The apex court in very many decisions pointed out that, when the specimen handwritings are taken for the purpose of sending for comparison the signature obtained must be either contemporaneous or at an earlier point of time and not subsequent to the denial of the transaction. So just because there is a change of signature in the vakalath and the 313 statement, the court can not jump to the conclusion that, the signature is not of the accused. I had analysed the evidence of PW1 and DW1, as done by both the courts below, when this court is sitting exercises its function under revisional jurisdiction 6 CRL.R.P.No.54 OF 2004 the power to undo the appreciation of the evidence done by the courts below arisen only when there is perversity or total misappreciation by the courts below. If is for that purpose, I had extracted what the witnesses had spoken and I do not find any grounds to differ with the view concurrently taken by both the courts below to come to the conclusion that the evidence rendered by PW1 is sufficient to hold that the complainant has proved his case. So I find that there is nothing to interfere with the finding rendered u/s138 of Negotiable Instruments Act that the accused is guilty. 2. Now turning to the question of sentence. The accused is a lady and if she wants to wipe off the liability I do not want to send her to jail. By virtue of the amended provisions of Negotiable Instruments Act, any court of competent jurisdiction is entitled to levy double the cheque amount as fine. So it will be sufficient to impose fine, as of the cheque amount and in default to undergo imprisonment, if it is not paid within a reasonable time. 7 CRL.R.P.No.54 OF 2004 3. In the result Crl.R.P. Is disposed of as follows:- 1.The finding of guilt u/s.138 of Negotiable Instruments Act is confirmed. 2.The sentence is modified and the accused is directed to pay a fine of Rs.2,20,000/- and in default of which she shall undergo simple imprisonment for a period of 3 months and the amount when paid or realised shall be disbursed to the complainant on a proper application. The accused shall pay the fine on or before 5.10.09, failing which the lower court is at liberty to execute the sentence. M.N.KRISHNAN, JUDGE ami.