IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 Crl.Rev.Pet.No. 1851 of 2011() -------------------------------------------- CRA.230/2009 of ADDL. SESSIONS COURT (ADHOC), KALPETTA CC.270/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, KALPETTA. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------------- RIJU A.K, S/O.KELUKUTTY,AGED 44 YEARS, ARIKKARAKANDI HOUSE,THIRUNELLI, MOOLANKAVU,SULTHAN BATHERY, WAYANAD. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): COMPLAINANT & STATE ------------------------------------------------------------- 1. M/S.KALPETTA JANAKSHEMA MARUTHI CHITS (P) LTD, KALPETTA, REP.BY MANAGER SRI.SHANMUGHADAS S/O.YESODHARAN,SHEEJA BHAVANAM,KUNNUMBATTU P.O CHUNDALE,WAYANAD DISTRICT 673 123. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.1851 OF 2011 ----------------------------------------- Dated this the 23rd day of September 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently, by the two inferior courts. The revision petitioner/accused has pleaded not guilty. Negativing his plea of not guilty, the learned Magistrate, on his conviction, has sentenced him to undergo simple imprisonment for three months and to pay fine of `.50,000/- with default term of simple imprisonment for three months more. Fine amount, if realised, was directed to be paid as compensation to the complainant. In appeal, the learned Sessions Judge affirmed the conviction and sentence without any modification. Feeling aggrieved, the accused has preferred this revision. 2. I heard the learned counsel for the revision petitioner/accused. Both the courts below have gone wrong in appreciating the defence canvassed by the accused denying the execution of the cheque and also the transaction with the complainant, is the submission of the learned counsel. It is submitted that the presumption covered by Section 139 of the NI Act would be available to the complainant only in a case where execution of the instrument is admitted or proved by the materials tendered in the Crl. R.P No.1851/2011 - 2 - case. The defence canvassed by the accused that the cheque had been issued in blank form with signature alone as a security for collecting the priced chitty amount from the complainant, a chitty company, necessarily warranted proof by cogent and convincing evidence showing that the cheque had been issued towards discharge of a legally recoverable debt or liability by the complainant, is the further submission of the counsel. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find no merit in the submissions made by the counsel. Perusing the impugned judgments rendered by both the courts below, it is seen, statutory notice issued on dishonour of the cheque was returned unclaimed. The revision petitioner/accused has no case that such notice was not sent in the address to which usually posted articles are served on him. So much so, the one and only conclusion that could be formed by the returning of such statutory notice with the endorsement 'unclaimed' is nothing, but, that it was refused to be accepted by the addressee. Leaving that apart, it is also seen that the evidence in the case consisted only that of the employee of the complainant examined as PW1 and the documentary materials tendered on behalf of the complainant exhibited as Exts.P1 to P7. True, some suggestive questions had been put during the cross examination of PW1 on behalf of the Crl. R.P No.1851/2011 - 3 - accused to canvass a defence as indicated by the counsel. The learned Magistrate, who had the opportunity to watch the demeanor and deportment of PW1 with reference to the materials tendered in the case found his testimony reliable, trust worthy and convincing. The learned Sessions Judge, after reappreciating the evidence also found no ground to interfere with the finding and conclusion so formed by the learned Magistrate. In such circumstance, having regard to the statutory presumption covered under Section 139 of the NI Act that a cheque issued to a payee or in the possession of a holder in due course, the conclusion formed by the learned Magistrate that it had been issued in discharge of a legally recoverable debt or liability from the maker of that instrument, is only proper and correct. The apex court in “Rangappa v Mohan” (2010(2) KLT 682(SC)), differing from the view expressed in “National Small Industries Corporation Ltd. v State (NCT of Delhi)” (2008(1) KLT 425) has held that even in a case where there is a denial of execution of the instrument, if on the materials the court is satisfied, it can justifiably apply, the presumption under Section 139 of the NI Act to hold that such instrument had been issued by the maker towards a legally recoverable debt from him. When such be the position, I find, there is no merit in the challenges mooted by the counsel that the defence canvassed by the accused, Crl. R.P No.1851/2011 - 4 - which remain unsupported by any material, whatsoever, was not taken into account why the court below found a conviction against him. I may also state that the counsel has also raised another contention that the complainant being a chitty company, without production of the account books showing the transaction with the accused in relation to the chitty transaction, the evidence of PW1 is hardly sufficient when there was a denial of execution of the cheque. That challenge has also no merits. Admittedly, the cheque was issued by the accused to the company. It is his defence that it was issued in blank form with signature alone. No steps whatsoever have been taken by the accused to show the other entries made in the cheque, on which his prosecution was launched, were made by a different hand. When such be the case, there is absolutely no merit in the challenge put up by the counsel to assail the conviction, concurrently, rendered by the courts below. 5. So far as the sentence imposed against the accused, having regard to the fact that the offence involved is one arising on dishonour of a cheque, I find, the approach of the court should be more to provide compensation to the complainant than to be punitive. No special circumstance is made out in the case to show that incarceration of the petitioner for a term in prison is warranted. So much so, substantive term of imprisonment shall stand reduced to Crl. R.P No.1851/2011 - 5 - imprisonment for a day till the rising of the court, retaining the fine awarded with the default term thereof. 6. Affirming the conviction of the accused, sentence imposed against him is modified reducing it to imprisonment for a day, till the rising of the court, retaining the fine amount with default term fixed by the court below. Petitioner is directed to appear before the court below on 24-10-2011 to serve out the substantive term of imprisonment for a day, till the rising of the court, and to report payment of fine. He is granted time for one month from today to pay the fine. The learned Magistrate is directed to keep in abeyance the execution of the sentence till the date fixed as above for his appearance. In default of his appearance and nonpayment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge