IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 Crl.Rev.Pet.No. 464 of 2002() ----------------------------- CRA.611/1999 of SESSIONS COURT, KOZHIKOE CC.329/1997 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... REVN. PETITIONER(S): REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------- V.A. KUNHEERAYAN, S/O. POCKER, VADAKKE ARAYANNA, NANMINDA P.O., KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------- 1. O.K. RAMESH KUMAR, S/O. BHASKARAN, VELLIYATTU POYIL HOUSE, PUNNUR, CHERUPALAM P.O., KAKKUR, KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.V.G.ARUN PUBLIC PROSECUTOR SRI. I.V. PROMOD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/7/09, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.3090/02 IN CRL.R.P.NO.464/02: CLOSED 14/7/2009 SD/- R. BASANT, JUDGE. //True Copy// R. BASANT, J. ------------------------------------------------- Crl.R.P. No.464 of 2002 ------------------------------------------------- Dated this the 14th day of July, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the Negotiable Instruments Act. The petitioner/accused faces a sentence of simple imprisonment for a period of four months under Sec.138 of the N.I. Act. No fine has been imposed. There is no direction for payment of any compensation. 2. The complainant alleged that the accused had borrowed an amount of Rs.55,000/- and had issued Ext.P1 cheque for the discharge of the said legally enforcible debt/liability. The cheque, when presented for encashment, was dishonoured by the bank on the ground of insufficiency of funds. Notice of demand was duly issued, received and acknowledged. It did not evoke any response. In these Crl.R.P. No.464 of 2002 -: 2 :- circumstances, the complainant came to court after scrupulously observing the statutory time table. The learned Magistrate took cognizance. The accused denied the offence. Thereupon, the complainant examined himself as P.W.1 and proved Exts.P1 toP3. The accused, in the course of cross-examination and when examined under Sec.313 Cr.P.C., took up a contention that there was no transaction between the complainant and the accused. According to him, the son of the accused and the complainant were doing a joint business in the name of `Sigma Enterprises'. To help the son of the accused in such business a signed blank cheque was handed over by the accused to his son. The son of the petitioner had kept the same at the premises of Sigma Enterprises. The complainant had stolen the same and was mis-utilising the same to stake a false claim against the petitioner. This, in short, is the defence urged. The complainant denied that he had anything to do with the management of Sigma Enterprises. But when confronted with Exts.D1 to D3, he had to admit that he used to visit the said Sigma Enterprises and that certain documents were signed by him because of the intimate personal relationship between the parties. The accused did not adduce any oral evidence. Exts.D1 to D3 were marked. Crl.R.P. No.464 of 2002 -: 3 :- 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Sec.138 of the N.I. Act. Accordingly, they proceeded to pass the impugned concurrent judgments. 4. I have heard the learned counsel for the petitioner/accused and the respondent/complainant. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner assails the impugned order on the following grounds: (1) The courts below ought to have found that the execution of the cheque has not been proved and consequently the presumptions under Secs.118 and 139 of the N.I. Act should not have been drawn. (2) The courts below ought to have held that the complainant has grossly failed in establishing his case that the cheque was issued for the due discharge of a legally enforcible debt/liability. (3) The sentence imposed is, at any rate, excessive. 5. Ground Nos. (1) and (2): It is by now trite that the mere admission of the signature in a cheque does not amount to Crl.R.P. No.464 of 2002 -: 4 :- admission of execution of the cheque. There is a long distance between the mere admission of the signature in the cheque and admission/proof of execution of the cheque. This distance, it is by now trite, has to be traversed by the complainant by adducing evidence. I have no hesitation to agree with the learned counsel for the petitioner that mere admission of signature in a cheque cannot bring with it the train of presumptions under Secs.118 and 139 of the N.I. Act. The crucial question is whether the execution of the cheque has been proved. 6. We have the oral evidence of P.W.1 that the cheque was issued to him by the accused for the due discharge of a legally enforcible debt/liability. His evidence is eminently supported by his ability to produce Ext.P1 cheque admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account. Such cheque does admittedly bear the signature of the accused also. The oral evidence of P.W.1 has to be understood, evaluated and appreciated in the light of these circumstances. Nay, we have yet another crucial circumstance that the notice of demand duly received and acknowledged did not evoke any response from the accused. While appreciating the oral evidence of P.W.1 against which no other evidence is adduced except Exts.D1 to D3, the courts cannot lose sight of the fragile Crl.R.P. No.464 of 2002 -: 5 :- defence urged by the accused against the oral evidence of P.W.1. Accused has a case that the cheque was stolen from the possession of his son who had a joint business with the complainant. The petitioner's son is not examined. The inaction/silence on receipt of Ext.P3 notice of demand knocks the bottom out of the theory of theft of the cheque leaf from the possession of the son of the accused by the complainant. The petitioner, it is shown, is a Head Master of a local school. It would be idle to assume that the petitioner signed and handed over the blank cheque to his son and that he remained silent and inactive even after he came to know that the cheque had been grossly misused by the complainant who allegedly thieved it from the possession of the petitioner's son. 7. Under Sec.3 of the Indian Evidence Act the standards of a reasonably prudent person have to be adopted by the court while appreciating oral evidence. I have no hesitation to agree that an ordinarily prudent person cannot lightly swallow the version of the accused with the help of which he wants this Court to reject and throw over board the evidence of P.W.1. The fact that the accused had not given details of the transaction of borrowal of Rs.55,000/- or the fact that he had not examined any person who had seen the alleged transaction and the further fact Crl.R.P. No.464 of 2002 -: 6 :- that the source of money of the complainant has not been explained are not, according to me, sufficient grounds to conclude that the execution of the cheque has not been proved. The last trace of doubt, if any, on this aspect is laid to rest by the artificial and abnormal conduct of the accused not responding to Ext.P3 notice even if after he came to know that the cheque is stolen from the possession of his son and has been misused by the complainant to stake a false claim of Rs.55,000/-. I do not, in these circumstances, find any merit in the challenge laboriously raised against the acceptability of the evidence of P.W.1 at this third tier of criminal litigation exercising the revisional jurisdiction of superintendence and correction. I find no reason whatsoever to interfere with the cogent and acceptable course followed by the courts below concurrently placing reliance on the oral evidence of P.W.1. The challenge raised on merits must, in these circumstances, fail. 8. The learned counsel for the petitioner then submits that the sentence imposed is excessive. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in the decision reported in Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that there are no compelling reasons which can Crl.R.P. No.464 of 2002 -: 7 :- persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight three rounds of legal battle by now and to wait from 1997 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 9. In the result: (a) This Crl.R.P is allowed in part; (b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I Act are upheld; (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.65,000/- (Rupees sixty five thousand only) as compensation under Section 357(3) Cr.P.C and in default to undergo simple imprisonment for a period of 60 days. If realised through court the entire amount shall be released to the complainant. 11. The petitioner shall have time till 14/9/09 to make the Crl.R.P. No.464 of 2002 -: 8 :- payment. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on that date for execution of the modified sentence hereby imposed. The sentence shall not be executed till that date. (R. BASANT, JUDGE) Nan/ Crl.R.P. No.464 of 2002 -: 9 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No.464 of 2002 ------------------------------------------------- Dated this the 14th day of July, 2009 ORDER