IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 1915 of 2005() ------------------------------ CRA.293/2004 of ADDL.SESSIONS COURT, KOTTAYAM CC.72/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- C.S. JAGANATHA PRASAD, S/O. SAHADEVAN, MANAGING DIRECTOR, M/S. C.S. COMPANY PVT. LTD., KOTTAYAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: RESPONDENTS/COMPLAINANT: --------------------------------------- 1. M/S. VIKAS HIRE PURCHASE COMPANY PVT.LTD REPRESENTED BY ITS MANAGER, RADHAKRISHNAN, M/S. VIKAS HIRE PURCHASE CO. PVT. LTD., KANNAMPURAM BUIDLINGS, M.C. ROAD, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 BY P.P. SMT.PUSHPALATHA M.K. FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1915 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 30th March, 2009 ORDER The challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). 2. The first respondent, a hire purchase company laid the complaint against the accused alleging that after having availed hire purchase facility in respect of a computer with accessories, he had issued a cheque for Rs.36,635/- promising its encashment on presentation in due course. But the cheque presented was dishonoured due to insufficiency of funds in his account. A statutory notice issued intimating dishonour and demanding the sum covered by the cheque was acknowledged but not responded with reply or payment. Prosecution was therefore launched against the accused by filing the complaint for the offence under Section 138 of the N.I.Act. 3. The accused, on appearance, pleaded not guilty. Complainant examined his Power of Attorney Holder as P.W.1 and got marked Exts.P1 to P8 to prove his case. The accused reiterated his plea of innocence when questioned under Section 313 Cr.P.C. He also CRL.R.P.1915/05 - 2 - mounted the box and got himself examined as D.W.1 setting forth a defence that the cheque on which the complaint was filed is forged and not genuine. He had a further case that 10 unsigned blank cheques had been obtained by the complainant, the hire purchase company, agreeing to provide a computer, but no computer was given as promised. His signature alone in the cheques exhibited as Ext.P2, was obtained by the complainant, was his case. The learned Magistrate, after appreciating the materials, found the case of the complainant trustworthy and the defence canvassed by the accused devoid of any merit. The accused was found guilty, and on his conviction, he was sentenced to undergo simple imprisonment for three months with a direction to pay compensation of Rs.50,000/- to the complainant under Section 357(3) of the Cr.P.C. with default term of simple imprisonment for one month more. In the appeal preferred against the conviction, the learned Sessions Judge concurred with the finding of guilt passed by the learned Magistrate and upheld the conviction, but modified the sentence directing the accused to undergo simple imprisonment for one more month and to pay the cheque amount as compensation to the complainant with default term of simple imprisonment for one month. The legality, propriety and CRL.R.P.1915/05 - 3 - correctness of the conviction and sentence are assailed by the accused and hence this revision. 4. I heard the learned counsel on both sides. 5. Before going into the merits of revision, first and foremost it has to be stated that the exercise of revisional jurisdiction to examine the correctness of a finding entered by the inferior courts lies within a narrow scope, as such jurisdiction is supervisory in character, primarily intended to avoid failure of justice. It is not open to the revisional court to reappreciate the evidence to examine the correctness of the finding of an inferior court unless it is shown that the finding formed is perverse and it could not have been arrived on the materials produced in the case. In that backdrop, the concurrent finding of guilt entered against the accused by the two courts below has to be examined to determine whether the finding arrived at by those courts call for any interference. It was urged before me by the learned counsel for the revision petitioner that the execution of the cheque had been denied in as much as the accused had raised a contention that the cheque was forged and the signature was not genuine, and as such, the complainant cannot sustain prosecution of the accused without proof of the execution and also substantiating CRL.R.P.1915/05 - 4 - the transaction alleged in the case. The accused has moved an application for sending the cheque to a forensic expert, and it was allowed by the learned Magistrate, submits the counsel. Since the batta was not paid within the time fixed by the court, the document was not sent over. The accused had moved another application later, for the same purpose, but, it was not considered by the learned Magistrate, is the grievance raised by the counsel. In the nature of the defence canvassed by the accused, the opinion of the expert, after subjecting Ext.P2 cheque to forensic examination, is vital to avoid miscarriage of justice, submits the counsel. Lastly, it was contended that Ext.P2 cheque was issued by a company, and as such, without proceeding against the company, the prosecution initiated against its Managing Director alone, the present accused, was illegal, and as such, the conviction entered against him is unsustainable. 6. The learned counsel for the complainant, on the other hand, submitted that conviction against the accused is fully supported by the legal evidence and there is absolutely no merit in the revision. Statutory notice issued on dishonour of the cheque, after acknowledgment, was not even responded, and PW1, when examined before Court, was not even challenged on any aspect regarding the CRL.R.P.1915/05 - 5 - defence canvassed by the accused that the cheque was forged, is the submission of the counsel for the complainant. Mere denial of the execution of the cheque without anything more, it is submitted, is hardly sufficient to displace the presumption covered by Section 139 of the N.I.Act. If only there is rebuttal evidence displacing the presumption under Section 139 of the N.I.Act, then only the complainant, need lead evidence on the transaction covered by the instrument, and that having not been done in the present case, the challenge raised as to the non-proving of the transaction, it is submitted, is unworthy of any merit. At any rate, it is submitted, the conviction entered against the accused does not call for any interference. 7. I have perused the records of the case and considered the submissions made by the counsel on both sides. It is interesting to note that when PW1 was examined, the accused had no case nor even a suggestion that the cheque was forged. This has to be examined in the backdrop of the proved circumstances involved in the case that the notice intimating dishonour was acknowledged but not responded with any reply. Before the examination of P.W.1, it is seen, the accused had made an application for sending over the instrument CRL.R.P.1915/05 - 6 - to a forensic expert contending that the signature was forged and not genuine. Admittedly, that application was allowed by the court, but the batta was not paid as directed. The non-questioning of P.W.1 while subjecting him to cross examination on any aspect relating to the defence canvassed, i.e., the instrument was forged and the signature in the instrument was not genuine, that too after moving an application for sending the instrument to forensic expert and getting a favourable order from the court, irresistibly lead to the conclusion that line of defence was no longer pursued and was given up. If at all the accused had any case that the signature in the instrument was forged, definitely, the attention of PW1 to the signature in the instrument should have been invited and his explanation sought for when he was cross examined. That was not done. It is interesting to note that when questioned under Section 313 of Cr.P.C., the accused stated that computer was not provided after payment of substantial amount to the hire purchase company. He has categorically admitted that he purchased a computer as per the hire purchase agreement. He paid a sum of Rs.16,600/- and gave ten blank cheques to get a computer on hire purchase was the version. The initial payment alleged to have been made by him as claimed is CRL.R.P.1915/05 - 7 - indicative that a computer was collected under the hire purchase scheme and future payment due was defaulted. The defence canvassed by the accused, while examining himself as DW1, that he had deposited Rs.10,000/- and paid service charges of Rs.2,950/-, but the computer was not given, deserve to be taken note of only for its rejection. If at all, he paid any amount as deposit, it is reasonable to hold that such payment was made only after collecting receipts. Non production of any receipt evidencing such payment is also a material circumstance discrediting his defence. He has even gone to the extent of denying his signature in the acknowledgment card, which tells in volumes that he has no regard for truth. The finding of guilt entered against the accused, it is seen, is fully supported by legal evidence and there is no merit in the challenges raised to impeach the conviction. The company should have been proceeded against, but not the accused alone, the last challenge raised to assail the conviction also appears to be not correct. The accused, as the Managing Director of a company had executed the cheque, which was subsequently dishonoured. He is culpable primarily for the offence arising thereof, and the absence of any proceedings against the company will not in any way affect his CRL.R.P.1915/05 - 8 - prosecution. Now with regard to the sentence, having regard to the totality of the facts and circumstances involved and the nature of the offence with which the accused was found guilty and convicted, I find his incarceration for a term in prison is not necessary to meet the ends of justice. So much so, sentence is modified, directing him to undergo imprisonment till the rising of the court and to pay compensation of Rs.50,000/- to the complainant under Section 357 (3) of Cr.P.C., within two months from the date of this order. In default of payment, the accused shall undergo simple imprisonment for two months. The accused shall appear and his sureties shall produce him before the Judicial First Class Magistrate Court-II, Kottayam, on 1.7.2009. The learned Magistrate shall execute the sentence as directed. Revision is allowed as above. srd S.S. SATHEESACHANDRAN, JUDGE