IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.Rev.Pet.No. 3812 of 2007() ------------------------------ REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------- AMBIKAVATHY, W/O.P.K.RAJENDRAN, PALLATHU HOUSE, CHITTETTUKARA, VADAKKEKARA P.O. BY ADV. SRI.DINESH R.SHENOY RESPONDENTS/COMPLAINANT AND STATE : ----------------------------------------------- 1. PEARSON, NIKATHIL HOUSE, CHITTATTUKARA, VADAKKEKARA P.O. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 ADV. SRI.T.K.SHAJAHAN R2 BY BY PUBLIC PROSECUTOR, SRI.AMJED ALI. T THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.3812 of 2007 ------------------------------------- Dated this the 17th day of March, 2009 ORDER In this revision petition, the revision petitioner, a woman, assails the concurrent verdict of guilty, conviction and sentence imposed on her in a prosecution under Section 138 of the Negotiable Instruments Act. After the appellate modification of the sentence, the petitioner now faces a sentence of imprisonment till rising of court. There is a further direction to pay the actual cheque amount of Rs.2,50,000/- as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of 2 months. 2. Certain fundamental facts are admitted and there is no dispute. The cheque in question is Ext.P1 for an amount of Rs.2.5 lakhs, which was drawn on an account maintained by the petitioner with her bank. Signature in Ext.P1 cheque is admitted. The said cheque was presented for encashment and was dishonoured on the ground of insufficiency of funds. Notice of demand was issued. It was duly received. It was replied to. But payment was not effected. Following the statutory time table scrupulously, the prosecution has been launched by the complainant/respondent. Crl.R.P.No.3812/07 2 3. Cognizance was taken by the learned Magistrate. The accused denied the offence alleged against her. The complainant examined himself as PW1. Exts.P1 to P8 were marked. On the side of the accused, a witness was examined as DW1. Exts.D1 to D5 were marked. The complainant took up a specific case that the cheque Ext.P1 was issued by the accused to the complainant for the due discharge of a legally enforcible debt/liability. According to him, an amount of Rs.2.5 lakhs was advanced as a personal loan/help to the accused by the complainant. The accused and her husband are employees in the Judicial Department. The son of the accused had connection with the complainant politically. According to the complainant, the cheque was issued for the due discharge of the said debt/liability. 4. The accused denied the assertion that the cheque was issued for the due discharge of any liability as alleged. According to her, her son, one Arunkumar had borrowed an amount of Rs.50,000/- from the complainant. As security for that transaction, Arunkumar had obtained a blank signed cheque from the petitioner and he had handed the blank signed cheque as security to the complainant. The complainant had misutilised the same to stake a false claim against the accused. Crl.R.P.No.3812/07 3 5. The courts below came to the conclusion that the complainant has succeeded in proving all ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act. Accordingly they proceeded to pass the impugned judgments. The appellate court indulgently modified the sentence imposed on the petitioner, a woman. 6. The petitioner/accused still claims to be aggrieved by the impugned verdict of guilty and conviction. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent verdict of guilty and conviction, the learned counsel for the petitioner assails the impugned verdict of guilty and conviction on 2 specific grounds. They are: i) The courts below erred in dismissing Crl.M.P.No.4602 of 2005 filed by the accused to issue coercive processes to procure the presence of a defence witness. ii) The courts below ought to have held that the complainant has not discharged his burden to prove that the cheque was issued for the due discharge of any legally enforcible debt/liability and must, at any rate, have held that the inferior burden on the accused has been satisfactorily discharged by the materials introduced in evidence. Crl.R.P.No.3812/07 4 7. It will be apposite to advert to the broad facts before the grounds of challenge are specifically adverted to. According to the complainant, it was a purely personal loan transaction. An amount of Rs.2.5 lakhs was paid to help the petitioner to tide over a difficult financial situation. The cheque was issued for the discharge of such liability. The complainant had not specifically pleaded in the notice of demand or in the complaint, the details of the liability to discharge for which the cheque was issued. But in the course of cross-examination, he asserted that it was an advance of money made to help the complainant to tide over a difficult financial situation. How did he get the amount of Rs.2.5 lakhs? To this pointed question, he answered that he had closed fixed deposits and had utilised an amount of Rs.50,000/- which was in his possession to help the petitioner. He did not adduce any specific evidence to prove the transaction in question. Except the oral evidence of PW1 and the cheque signed by the accused, there is nothing to prove the original transaction or loan/help by the complainant to the accused. 8. In the course of cross-examination, suggestions were thrown at PW1 about a loan transaction with the Bank in the name of Arunkumar, the son of the petitioner in which the complainant/PW1 was a surety. He denied such transactions. But, Crl.R.P.No.3812/07 5 by examination of DW1 and proof of Exts.D1 to D5, it has clearly been established now that there was a loan transaction in which Arunkumar, son of the petitioner was the loanee and PW1, the complainant herein was a surety. It has also been shown convincingly that two fixed deposits of the complainant were closed in 2004 and that amount was used for closing the loan transaction of Arunkumar, the principal debtor with the Bank. The amount exceeding Rs.2,00,000/- is shown to have been discharged in 2004, long after the commencement of the present prosecution in 2002. There can be no doubt that PW1 had not revealed the details of Exts.D1 to D5 when he was cross-examined. 9. The transactions evidenced by Exts.D1 to D5 certainly relates to the post prosecution period and not the pre-prosecution period. The proved conduct of PW1 not revealing the whole truth regarding Exts.D1 to D5 notwithstanding, it has to be noted that those transactions are post prosecution and have no vital relevance of bearing to the specific transaction in question for discharge of which liability Ext.P1 is alleged to be issued. 10. The learned counsel for the petitioner/accused contends that according to the accused this loan transaction was there even during the pre-prosecution stage. The son of the petitioner had defaulted payment of amounts in their loan account. Notices were Crl.R.P.No.3812/07 6 issued to the principal debtor and the sureties. The son of the petitioner was unable to discharge the said liability. At that stage, the blank signed cheque given earlier was misutilised to stake a false claim for 2.5 lakhs against the petitioner. Perhaps the complainant may have anticipated the liability which he will have to discharge as a surety to the Bank and filled up the blank signed cheque to cover the eventuality of possible future liability, contends the learned counsel for the petitioner. It is true that there is no specific evidence except the oral evidence of PW1 to support the transactions in question. The evidence of PW1 is of course there. The evidence of PW1 is eminently supported by his ability to produce Ext.P1. Ext.P1, even admittedly, was signed by the petitioner and was handed over to the complainant through the son of the petitioner. Such handing over of the cheque was according to the accused in relation a financial transaction between the son of the petitioner and the complainant. The petitioner, admittedly, had some responsibility to discharge the said liability and the cheque in question was admittedly handed over by the petitioner to the complainant through her son for securing due discharge of the said liability between the complainant and the son of the petitioner. The complainant described that transaction to be one which was personal between Crl.R.P.No.3812/07 7 the complainant and the petitioner herein. 11. It cannot also be lost sight of that the petitioner is an employee in judicial service. Her husband is also an employee of the judicial service. She has a bank account. She chooses to contend lightly that she had handed over a signed blank cheque to her son with the intention that her son can hand it over to the complainant in connection with a financial transaction. The dispute is only about the quantum of the liability which has to be discharged in that transaction. It is in this context that one has to note that admittedly the cheque has been handed over by the accused to the complainant through her son. A contention lightly raised that a signed blank cheque was handed over by an account holder must certainly be viewed with doubt, suspicion and reservation by a court of facts especially when the account holder is not an ignorant or illiterate person; but an employee in the judicial service, whose husband is also admittedly an employee of the judicial service. A convenient light assertion that the signed blank cheque was handed over must inherently be viewed with doubt, suspicion and reservation by a court. Any prudent judge of facts must approach such a defence with reservation and the burden must rest heavily on the shoulders of the person who advances such a defence to establish that defence satisfactorily. Crl.R.P.No.3812/07 8 Of course, it is trite now that the burden of an accused to establish his case in defence in a prosecution under Section 138 of the Negotiable Instruments Act is certainly not as heavy as it is on the complainant to prove his initial case. But empty assertions are not certainly sufficient. At least, by the test of preponderance of possibilities and probabilities as in a civil case, the accused has to establish his plea that he had handed over a blank signed cheque as security. The question is whether the evidence of PW1 on the transaction can be accepted or not. The oral evidence of PW1 is supported eminently by his ability to produce Ext.P1 cheque which admittedly bears the signature of the petitioner. If the oral evidence of PW1 can be believed, signing, execution and delivery of the cheque by the petitioner to the complainant can be said to be established. And if that is accepted, the burden must certainly shift to the accused to rebut the presumption under Section 139 of the N.I.Act. 12. It is the case of the petitioner that there was an earlier financial transaction and the cheque was handed over as security for that transaction. According to the petitioner, only Rs.50,000/- was borrowed and that borrowal was by the son of the petitioner. According to the complainant, the transaction was between the petitioner and the complainant. No semblance of satisfactory data Crl.R.P.No.3812/07 9 has been placed before court in evidence except the assertions by the petitioner which is totally unsubstantiated to indicate that the transaction was really between the petitioner's son and the complainant and not between the petitioner and the complainant. The fact that the cheque signed by the petitioner was handed over is an indication of the fact that the transaction was between the petitioner and the complainant. At least the petitioner accepted the responsibility and liability to discharge the debt, it is evident. 13. The petitioner has not adduced any semblance of materials to indicate that the original transaction was between her son and the complainant. The fact that long later Exts.D1 to D5 transactions indicate that loan of the son of the petitioner was discharged by closing the fixed deposit of the complainant, cannot throw any specific and satisfactory light on the controversy to be resolved. 14. The above discussions lead me to the conclusion that the courts below committed no error in having accepted the oral evidence of PW1 which is eminently supported by his ability to produce Ext.P1, admittedly signed by the petitioner, a knowledgeable person. The weight of that evidence cannot be offset by the improbable version advanced that the petitioner, a knowledgeable person that she had handed over a blank signed Crl.R.P.No.3812/07 10 cheque to the complainant through her son as security for the transaction between the complainant and the son of the petitioner. 15. I find it safe to conclude that the oral evidence of PW1 can be believed. The oral evidence of PW1 is supported by his ability to produce Ext.P1, admittedly signed by the petitioner. The petitioner's explanation as to why a signed cheque drawn on her account travelled to the possession of the complainant is found to be unsatisfactory. In these circumstances, the oral evidence of PW1 can safely be believed. When the oral evidence of PW1 is believed, signature, execution and delivery of the cheque stands proved. The burden shifts to the petitioner to rebut the presumption under Section 139 of the N.I.Act. No satisfactory evidence has been adduced to discharge that burden. In these circumstances, I find no merit in the second contention urged by the learned counsel for the petitioner/accused. 16. The learned counsel for the petitioner then contends that the petitioner has been denied a real and reasonable opportunity to establish her case. She contends that the petitioner was denied opportunity to examine her own son. The trial court below has given ample opportunities to the petitioner to examine her own son. Summons was issued. It was served. He did not appear. Coercive processes were issued. He appeared through Crl.R.P.No.3812/07 11 counsel. But still, he did not later appear before the court. There is nothing to indicate that there is any conflict of interest between the petitioner and her son. No explanation is offered as to why the petitioner is unable to produce her son before the court. A reading of the reply notice Ext.P7 will, in this context, be of crucial relevance. In Ext.P7, the contention raised by the petitioner is that her son had discharged the entire liability of Rs.50,000/-. But the cheque was not returned to him. There is no semblance of a suggestion of any strain in the relationship between the petitioner and her son. It does not require the wisdom of Solomon to read between the lines and understand that the petitioner did not really want to examine her son and the excuse has been offered only to prolong and protract the proceedings. I have been taken through the order dated 19/11/2005 passed by the learned Magistrate turning down the prayer for issue of fresh coercive process to facilitate examination of the son of the petitioner. I find the reasons given by the learned Magistrate to be absolutely convinced. The petitioner challenged that order before this court in writ petition and another Bench of this court had turned down the challenge, of course, holding that the challenge can be raised in appeal, if necessary. That challenge now stands rejected though the appellate court has not specifically adverted to that challenge. Crl.R.P.No.3812/07 12 I have considered the challenge against the order dated 19/11/2005. I am not persuaded to agree that the said order deserves to be interfered with or that the petitioner deserves to be granted a further opportunity to adduce defence evidence. 17. The above discussions lead me to the conclusion that the verdict of guilty, conviction and sentence under Section 138 of the N.I.Act does not warrant any interference. The sentence imposed is absolutely lenient. If it suffers from any defect, it is only that the compensation imposed is not sufficient. 18. The challenge raised in this Crl.R.P therefore fails and the Crl.R.P is hence dismissed. (R.BASANT, JUDGE) jsr