IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.Rev.Pet.No. 433 of 2002(B) ------------------------------ CRA.218/1998 of SESSIONS COURT, THODUPUZHA CC.23/1997 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- P.K. SAKKEER, S/O. KASSIM, POTTAPPARAYIL HOUSE, (KOTTAPPURAM) KEERIKODE KARA, KARIKODE VILLAGE, THODUPUZHA. BY ADV. MR.T.I.ABDUL SALAM RESPONDENT(S): RESPONDENTS/STATE& COMPLAINANT: ----------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. 2. K.M. MUHAMMED, KALAPARAMBIL HOUSE, KEERIKODE KARA, KARIKODE VILLAGE, THODUPUZHA. R1 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA R2 BY ADV. MR.K.J.GEORGE KUNNUMPURATH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON C.M.P.NO.2903/2002 IN CRRP.NO.433/2002 DISMISSED 23/03/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.433 OF 2002 (B) ----------------------------------- Dated this the 23rd day of March, 2009 O R D E R The revision is filed by the accused, who faced trial for the offences punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the 'N.I.Act'. He challenges the concurrent verdict of guilt found against him by both the courts below. The trial Magistrate convicted and sentenced him to undergo rigorous imprisonment for two months and to pay a fine of Rs.32,000/- with default term of rigorous imprisonment for one month more. A direction was also issued that, if fine is realised, a sum of Rs.30,000/- shall be given as compensation amount to the complainant. In the appeal, the Sessions Judge confirmed the conviction, but modified the sentence to the extent of altering rigorous imprisonment to simple imprisonment. In all other respects, sentence was also confirmed. Aggrieved by the conviction and sentence as indicated above, questioning its legality, propriety and correctness, the accused has preferred this revision. CRL.R.P.433/02 2 2. I have heard the counsel for both sides. The grievance raised by the learned counsel for the revision petitioner/accused is that the defence canvassed by the accused that the cheque had been issued in blank form with his signature alone was not properly appreciated by the court below and due execution of the cheque was not established by the complainant. Perusing the records of the case, I find that the merit of the defence set up by the accused, during trial, has to be appreciated in the backdrop that he did not even respond to the statutory notice sent soon after the dishonour of the instrument, intimating of such dishonour and demanding the same covered by the instrument. Further more, other than the suggestive questions put to the complainant, while examined as PW1, and also the statements made when questioned under Section 313 of the Cr.P.C., no material whatsoever was placed to show that the defence canvassed, was atleast probable. Vague suggestions without anything more have no place in criminal trial. The accused, when he sets up a defence, must show atleast that the defence canvassed is probable. Merely putting suggestive questions to the complainant will not enable the accused to wriggle out of the indictment especially where the materials produced in the CRL.R.P.433/02 3 case prima facie show his culpability. Ext.P1 cheque admittedly arose from the account of the accused and it had been established that the dishonour of the instrument was due to insufficiency of funds in his account. The cheque was issued in blank form with signature alone as a security, the defence pleaded by the accused remained unsubstantiated. His signature in the instrument is admitted. Both the courts have concluded on the materials that due execution of the cheque is proved by the evidence of the complainant. Statutory presumption under Section 139 of the Act applies with full force that the instrument had been issued towards discharge of a debt or liability. So much so, the conviction for the offence founded against the accused by the learned Magistrate and upheld by the Sessions Judge, deserves only to be upheld, I do so. As regards the sentence, I am of the view that the incarceration of an offender convicted of an offence under Section 138 of the N.I.Act is normally not warranted unless exceptional circumstances justify such a deterrent punishment. There is nothing in the case to show that the accused in the present case has to be detained to suffer CRL.R.P.433/02 4 imprisonment in prison for a term. To do justice to both sides, a deterrent punishment coupled with direction to pay compensation to the complainant will be sufficient. Confirming the conviction passed against the accused, sentence is modified directing him to undergo imprisonment till the rising of the court and to pay a compensation of Rs.35,000/- under Section 357 (3) of the Cr.P.C. within two months from the date of this order. Compensation, if realised, shall be paid to the complainant. In default of payment of compensation, the accused shall undergo simple imprisonment for two months. The accused shall appear, and his sureties shall produce him before the court below, on 3rd June 2009 and the learned Magistrate shall execute the sentence as directed. The revision is disposed of accordingly. S.S.SATHEESACHANDRAN JUDGE prp/24.3.09 S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.433 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009