IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 Crl.Rev.Pet.No. 3378 of 2009() ------------------------------ CRA.664/2007 of SESSIONS COURT, PALAKKAD ST.3750/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- SUDARSANA.K.S., W/O.M.K.RAJESH, AGED 32 YEARS, PADMASREE, KINAVALLUR P.O., PALAKKAD DISTRICT. (MANKARA POLICE STATION LIMIT). BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS: COMPLAINANT & STATE: ----------------------------------- 1. K.MAHESH CHAND, M.K.M.RICE MILL, MELAMURI, PALAKKAD. (TOWN NORTH POLICE STATION LIMIT). 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3378 of 2009 ---------------------------------------- Dated this the 10th day of November, 2009 ORDER The revision petitioner is the accused in S.T.No.3750 of 2005 on the file of the Judicial Magistrate of the First Class-III, Palakkad. She was prosecuted by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. It was with a plea that the revision petitioner borrowed a sum of Rs.3,23,000/- from the first respondent on 10/9/2004 and in discharge of the said liability a cheque which was marked as Ext.P1 dated 23/7/2005 for the above sum was delivered and that when Ext.P1 was sent for collection it was returned dishonoured for insufficiency of funds along with Ext.P2 memo and that though a lawyer notice demanding discharge of the liability was caused on 2/8/2005 and it was accepted by the revision petitioner, the liability was not discharged. 2. The revision petitioner pleaded not guilty. She was sent for trial. After the prosecution evidence, she was questioned with reference to the incriminating evidence. She took up a Crl.R.P.No.3378 of 2009 2 defence of total denial. The learned magistrate on evaluation of the evidence arrived a finding of guilt. Consequently, she was convicted and sentenced to simple imprisonment for three months and to pay Rs.3,23,000/- as compensation to the first respondent under Section 357(3) of the Code of Criminal Procedure. She took up the matter in Criminal Appeal No.664 of 2007. The learned Sessions Judge, on re-appraisal of the evidence concurred with the lower court and by judgment dated 19/9/2008, the appeal was dismissed. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 3. The learned counsel for the revision petitioner would submit that there is no evidence to come to a conclusion that there existed a legally recoverable debt or liability and in the above circumstance the conviction and sentence are not legally sustainable. In support of the argument the learned counsel had given reliance to the decision in Krishna Janardhan Bhat Vs. Dattatraya Hegde (2008(1)KLT 425) and the decision in Bhaskaran Nair C. Vs. Mohanan B. and another (2009(2) KHC1021). Crl.R.P.No.3378 of 2009 3 4. In Krishna Janardhan Bhat's case, the accused and complainant had business dealings and for meeting expenses of business, blank cheques were issued and power of attorney was also executed. Having regard to the facts and circumstances of the case it was held that the complainant must prove the existence of a debt and that the existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. In Bhaskaran Nair's case, at paragraph 8, it is held that a court is expected to examine whether the transaction covered by the cheque is genuine and bona fide. In a case where materials produced disclose suspicious circumstances surrounding the transaction unless satisfactory explanation removing such suspicion is tendered by the holder of the instrument no conviction is legally permissible solely banking upon the statutory presumptions. In that case blank cheque was issued as security. In this case the revision petitioner had not advanced any circumstance as in the reported cases. There is no case for the revision petitioner that the cheque was issued as a Crl.R.P.No.3378 of 2009 4 security or otherwise. 5. The evidence of the first respondent as PW.1 would show that the revision petitioner borrowed a sum of Rs.3,23,000/- on 10/9/2004 and in discharge of that liability Ext.P1 cheque dated 23/7/2005 drawn on Karoor Vysya Bank, Palakkad Branch was issued. In cross-examination the transaction was not disputed. The capacity to pay the amount mentioned by the the first respondent was also not disputed. There is not even a suggestion that the first respondent obtained Ext.P1 cheque in any manner other than what was deposed by the first respondent. It is pertinent to note that the revision petitioner acknowledged the notice demanding discharge of liability. But no reply was caused. According to the learned counsel for the revision petitioner, the husband of the revision petitioner was ailing and undergoing treatment and so the revision petitioner could not issue a reply notice. In support of his argument, Annexure A document was produced. It would show that the husband of the revision petitioner was undergoing treatment from 14/9/2005. Whereas the notice was issued on 2/8/2005. Since such document was not brought in evidence, no Crl.R.P.No.3378 of 2009 5 reliance can be given to it. Whatever may be the excuse, it remains a fact that the revision petitioner remained silent after acknowledging notice demanding discharge of a sum of Rs.3,23,000/-. It would indicate that the revision petitioner had no good defence at the time when the notice was received. The learned counsel for the revision petitioner took me through the evidence of PW.1. As mentioned earlier, there is no suggestion disputing the transaction alleged. PW.1 had given evidence regarding the borrowal, issuance of cheque, dishonour of the same, demand for discharge and failure to discharge. Though he was subjected to searching cross-examination, no material was disclosed to impeach the veracity of his testimony. His evidence is supported by the presumptions under Sections 118 and 139 that the cheque was drawn for valuable consideration and delivered in discharge of the liability. Other than total denial, the revision petitioner did not even attempt to rebut the legal presumption. She has no good explanation as to how the 1st respondent got Ext.P1 cheque. Therefore it is just and appropriate to conclude that the 1st respondent got it in the manner deposed by him. There is nothing to conclude that the Crl.R.P.No.3378 of 2009 6 1st respondent got Ext.P1 in any manner other than what was deposed by him. There is not any room for any suspicion. There is no case that there is any violation of the statutory procedures or that there was any delay in launching prosecution. In the above circumstance the courts below had correctly appraised the evidence on record and rightly arrived a conclusion of guilty. I find little reason to interfere with the concurrent finding of the courts below in exercise of the revisional powers. 6. On gender consideration I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of imprisonment till rising of the court with order to pay compensation as ordered by the courts below would serve the purpose. 7. In the result, the revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till rising of the court. The revision petitioner is ordered to pay Rs.3,23,000/- as compensation to the first respondent under Section 357(3) of the Code of the Criminal Procedure. In default of payment of compensation the revision petitioner shall undergo simple imprisonment for six Crl.R.P.No.3378 of 2009 7 months. The revision petitioner is granted six months time to pay the compensation amount. Till then, the bail bond executed by her shall remain in force. P.S.GOPINATHAN, JUDGE skj