IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 Crl.Rev.Pet.No. 537 of 2004(B) ------------------------------ CRA.395/2003 of ADDITIONAL SESSIONS COURT(ADHOC-II), ERNAKULAM CC.238/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- VILASINI THAMPI, AJANTHA TRAVELS, M.G.ROAD, COCHIN-15. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM RESPONDENTS: RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.SRIPATHY CHITS AND FINANCE (P) LTD., POST OFFICE LINK ROAD, COCHIN-31, REP. BY AUTHORISED AGENT A.V.RAMAN POTTI, CHIEF ACCOUNTANT OF THE COMPANY. ADV. SRI.P.N.SUKUMARAN FOR R2 SRI.P.P.PRATHAPAN FOR R2 R2 BY PUBLIC PROSECUTOR SMT. P.N. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P. NO. 537 OF 2004 ======================= Dated this the 23rd day of February 2011 ORDER The petitioner herein is the accused who was found guilty and convicted for the offence under Section 138 of the Negotiable Instruments Act and is challenging the concurrent finding of the courts below to that effect and also the sentence imposed on her. 2. The trial court after considering the evidence on record found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced her to undergo simple imprisonment for six months and to pay a fine of Rs.1,15,000/- and in default to undergo simple imprisonment for four months. It was also directed to pay Rs.1,13,000/- as compensation under Section 357(1) Cr.P.C. to the complainant CRRP 537/2004 -2- from the fine amount,if realised. The accused challenged the said finding of guilty and conviction against her by preferring the appeal before the appellate court. The appellate court dismissed the appeal. The order of conviction and sentence passed by the learned Magistrate was confirmed. That concurrent finding of guilty and conviction of the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act and the sentence imposed thereunder has been challenged by the revision petitioner/accused before this Court by filing this revisions petition. 3. The allegations against the accused in the complaint preferred by the complainant briefly are as follows: The accused bid two kuries run by the complainant and towards discharge of portion of liability towards repayment of the amount bid by the accused, issued the cheque dated 25/6/1997 for Rs.1,02,930/- in favour of the complainant. That cheque on presentation for collection before the Bank was dishonoured for want of sufficient funds in the account of the accused. Thereafter, lawyer notice was sent by the complainant to the CRRP 537/2004 -3- accused which was received and sent a reply notice. The amount as demanded by the complainant was not paid and proceedings have been initiated by the complainant under Section 138 of the Negotiable Instruments Act after complying with all the ingredients enunciated therein. 4. The complainant was examined as PW1 and marked Exts.P1 to P10 . DWs.1 and 2 were examined and Exts.D1 to D6 were marked on the side of the defence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the 2nd respondent. Heard the learned Public Prosecutor also. 6. The specific contention raised by the revision petitioner/accused before this Court is that the complainant has not proved all the ingredients enunciated under Section 138 of the Negotiable Instruments Act to prove the offence alleged against the accused. The courts below have failed to note that the complainant has not discharged the initial burden to prove the transaction and the presumption in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act CRRP 537/2004 -4- cannot be taken in favour of the complainant. According to the learned counsel, one petition which has been filed by the accused before the trial court for production of the document by the complainant, has not been allowed which caused miscarriage of justice. That document, if produced, would disprove the case of the complainant advanced in the complaint and an adverse inference under Section 114 of the Evidence Act can be taken in favour of the accused. 7. The specific case of the complainant in the compliant as well as in the oral evidence of PW1, the power of attorney holder of Sripathi Chits & Finance Pvt.Ltd., a company registered under the Companies Act, is that the accused/revision petitioner issued Ext.P3 cheque dated 25/6/1997 for Rs.1,02,930/- towards discharge of liability due to the Finance Company for the amount bid by her in two kuries, Nos. 6 & 7. The defence case was that the disputed cheque, Ext.P3 was issued only as a security and not for any legally enforceable debt. Further, the cheque was given in the year 1994 which was not supported by consideration. CRRP 537/2004 -5- 8. The complainant has issued lawyer notice as stipulated under Section 138 of the Negotiable Instruments Act and after complying with all the formalities therein, the complaint has been filed. Copy of that lawyer notice was marked as Ext.P7. To that notice, Ext.P9 reply notice has been sent by the accused. It is admitted in Ext.P9 reply notice that the accused has subscribed two chitty Nos.6 & 7 conducted by the complainant and the same were bid by her. It is further contended therein that towards instalment of chitties payable by the accused to the complainant, she has executed promissory notes and as insisted by the complainant, she has also issued a cheque for Rs.1,02,930/- as security for due repayment of the chitty instalments. Ext.P3 cheque is dated 25/6/1997 issued in favour of the complainant for a sum of Rs.1,02,930/-. Thus there were kury transactions between the complainant and the accused was admitted. Handing over of the cheque to the complainant is also admitted. But according to the accused, she had issued a signed blank cheque in favour of the complainant as security in the year 1994 when she received amounts covered by the chitty transactions CRRP 537/2004 -6- from the complainant. The statutory presumption under Section 139 of the Negotiable Instruments Act is that unless the contrary is proved, a cheque executed shall be presumed to have been issued towards discharge of the debt or liability. Whether that statutory presumption under Section 139 of the Negotiable Instruments Act has been rebutted or not in the present case by adducing valid acceptable evidence by the defence has to be assessed with reference to the facts and circumstances presented and materials produced in the case. There was kuri transactions between the complainant and the accused and the accused bid two kuries Nos.6 & 7 in respect of which Exts.D1 passbook and Ext.D4 daily collection receipt book were produced to rebut the presumption available to the complainant under Section 139 of the N.I.Act. The evidence adduced by DW2, the accused from the witness box that she has discharged the entire amount due to the complainant and that Ext.P3 cheque was not supported by consideration etc.has been found against by the trial court as well as by the appellate court after considering the oral evidence and the documentary evidence. No evidence has been adduced by CRRP 537/2004 -7- the accused to substantiate the contention raised by her that the liability due to the complainant has been discharged by her. Exts.D1 and D4 produced by the accused will not substantiate that contention raised by her. It is for the accused to make the entries regarding all the repayments made by her in Exts.D1 and D4 for which, the same were given to her. No adverse inference can be drawn against the complainant for the non-production of the document to prove the kuri transaction as argued by the learned counsel for the revision petitioner. The offence alleged in this case is under Section 138 of the Negotiable Instruments Act and not for recovery of amount due under kuri transaction. This was taken note of by the courts below and after considering the evidence it was found that Ext.P3 cheque was issued by the accused in favour of the complainant in furtherance of a liability has been proved and the necessary ingredients for the offence under Section 138 of the N.I.Act has been established. Accordingly, the order of the lower court in convicting and sentencing the accused was confirmed by the appellate court. CRRP 537/2004 -8- 9. The jurisdiction of revision is essentially the power and the duty of superintendence and correction. The crucial question to be considered is whether the findings of fact rendered by the courts below are so grossly erroneous or perverse as to warrant revisional interference. 10. The learned counsel for the revision petitioner submitted that the sentence of imprisonment may be avoided by modifying the same for imprisonment till rising of the court. According to the learned counsel, the accused had already deposited Rs.10,000/- as directed by the appellate court and half of the cheque amount also was deposited subsequently as directed by this Court while suspending the sentence. The learned counsel prays two months time to deposit the balance amount. The learned counsel for the 2nd respondent/complainant submitted that the disputed cheque issued for Rs.1,02,930/- on 25/6/1997 and about 13 years time is already elapsed. Considering the lapse of time, compensation may be enhanced, it is submitted. CRRP 537/2004 -9- 11. Considering the argument advanced by both counsel and after perusing the judgment of both the courts below and also the evidence on record, I find no interference is necessary for the finding of guilty and conviction of the revision petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act and the same is confirmed. But the sentence is modified to imprisonment till rising of the court. 12. In the result, a) this revision petition is allowed in part. b)The order of conviction entered into against the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act is confirmed and the sentence is modified for imprisonment till rising of the court. c) The order of the trial court to pay the fine amount of Rs.1,15,000/- and confirmed by the appellate court is modified and the revision petitioner is directed to pay/deposit a total amount of compensation of Rs.1,15,000/- under Section 357(3)Cr.P.C. CRRP 537/2004 -10- d)The revision petitioner is directed to deposit/pay the amount of Rs.1,15,000/- as total compensation to the complainant after deducting the amount, if any, already deposited before the trial court on or before 23/4/2011 and in default of which she is directed to undergo simple imprisonment for two months. e)If the revision petitioner has deposited the balance amount as directed above, the second respondent/complainant can withdraw the entire amount on filing proper application. f)The revision petitioner shall appear and her sureties shall produce her before the learned Magistrate on 25/4/2011 for execution of the sentence. M.C. HARI RANI JUDGE ks.