IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 441 of 2006() ---------------------------------------- CRA.113/2005 of SESSIONS COURT, ALAPPUZHA CC.459/2003 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARY .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- REMANI VASUDEVAN, AGED 43 YEARS, W/O.VASUDEVAN, VELIYIL VEEDU, POONTHOPPU WARD, AVALOOKKUNNU.P.O, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE -------------------------------------------------------------------------------------- 1. MICHAEL.P.J., PUTHENPURACKAL, THOTTUVATHALA. P.O, KAINAKARY, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== CRL.R.P.No.441 OF 2006 ===================== Dated this the 24th day of November 2008 O R D E R This revision petition is preferred against the judgment of the Sessions Court, Alappuzha in Crl.A.No.113/2005. The said appeal was preferred against the judgment of the Judl.I Class Magistrate Court, Ramankary in CC No.459/2003. The Magistrate Court convicted the accused under Section 138 of the NI Act and directed her to undergo simple imprisonment for six months and to pay an amount of Rs.2,05,000/- and in default the accused is sentenced to undergo simple imprisonment for three months. In appeal, the Sessions Court reduced the imprisonment till the raising of the court and retained the finding on payment of compensation. It is against that decision, the present revision is filed. 2. Heard the counsel for the petitioner. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.2 lakhs from the complainant and towards the discharge of liability, she had issued a cheque which when presented for encashment, returned with the endorsement insufficiency of funds. Subsequently a notice was sent and CRL RP 441/2006 -:2:- after waiting for the statutory period, a complaint has been filed. The defence appears to be that the cheque is not issued from the petitioner's account and only a blank cheque without signature was given and therefore the complainant is not entitled to prosecute the revision petitioner. The courts below have considered the evidence of PW1 and DW1 and marked Exts.P1 to P6 and D1 and D2 and arrived at a decision regarding the transaction, issuance of cheque and dishonour of the cheque. It is the case of the complainant that Ext.P1 cheque was issued by the petitioner towards the discharge of liability. The first contention raised was that it was not from her account and therefore it is incorrect. The courts below found that there was a joint account in the name of the petitioner as well as one Vinod and cheque books had been given to Vinod. It is a settled principle that one of the joint holder of the account is entitled in law to issue cheque. So the contention that the cheque was drawn not from her account is absolutely incorrect and the findings of the courts below are correct especially for the reason that the bank manager had been examined and he had sworn to that effect. 3. The next contention is regarding the execution of the cheque. It is the case of the petitioner that only a blank unsigned cheque was given. I do not know what is the purpose of giving a blank unsigned cheque because it CRL RP 441/2006 -:3:- will have only the evidentiary value of a worthless paper. Though the signature was denied, the trial court had verified the signature from the bank account form, vakalath, etc and arrived at a finding. There is a striking similarity between the signature. I am conscious of the fact that the courts are not experts in comparing the signatures. It is equally settled when there is other evidence before court and this can be used as a corroborative piece of evidence and a decision can be arrived at on the cumulative effect of other evidence plus this corroborative piece of evidence. This is what has been done by the courts below and that also does not call for any interference. The trial court found that the revision petitioner did not have a defence which is consistent. It has elaborately considered that matter and also found that transaction stands proved. In a catena of decisions, especially under Section 138 of the NI Act, it has been held that when such evidence is adduced and it is available before court, the preponderance of probability can be looked into for the purpose of analysing the evidence tendered by the prosecution. When it is done, it has to be stated that the approach of the courts below is absolutely right. I do not find any perversity, illegality or irregularity in the decisions and so the conviction under Section 138 is sustained. 4. So far as sentence is concerned, the petitioner shall undergo CRL RP 441/2006 -:4:- imprisonment for one day, i.e. till the raising of the court and convert the compensation into that of fine which on realisation be disbursed to the complainant. Therefore the revision petition is disposed of as follows:(1) The conviction under Section 138 is sustained. (2) The petitioner is directed to undergo simple imprisonment for a day. i.e. till the raising of the court and to pay a fine of Rs.2,05,000/- which on realisation shall be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for two months. (3) The revision petitioner shall present himself before the trial court for receiving sentence and for making payment of fine on 17.2.2009. In case of failure to be present, the trial court shall execute the sentence. If any amount is deposited as compensation, it shall be converted into fine and the said amount shall be disbursed to the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-