IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 Crl.Rev.Pet.No. 3005 of 2004(A) ------------------------------- CRA.409/2003 of III ADDL. SESSIONS COURT (ADHOC),FAST TRACK-I, THRISSUR ST.824/1999 of JUDICIAL FIRST CLASS MAGISTRATE, IRINJALAKUDA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- POULOSE P.L., S/O. LONAPPAN, POOKODAN HOUSE, PALLIKKUNNU, VARANTHARAPPILLY, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.SREEKANTH.K.R RESPONDENT(S): COMPLAINANT/NOT PARTY: ------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M. DAMODARAN, S/O. MADHAVI AMMA, MULLAPPILLY HOUSE, VASUPURAM, THRISSUR DISTRICT. PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R1 SRI.G.SREEKUMAR (CHELUR) FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3005 of 2004 -------------------------------------- Dated this the 11th day of June, 2009. ORDER This revision is in challenge of judgment of learned III Additional Sessions Judge (Adhoc) Fast Track-I, Thrissur in Crl. Appeal No.409 of 2003 confirming conviction of petitioner of offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the sentence and compensation payable by him. 2. Case set up by respondent No.2 is that petitioner borrowed Rs.1,00,000/- from him and issued Ext.P1, cheque dated 20.2.1998 for discharge of that liability. That cheque was dishonoured as payment was stopped. On getting intimation about that, respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on him. He neither replied, nor paid the amount. Hence the complaint. Respondent No.2 gave evidence as PW1 and proved Exts.P1 to P8. Exts.P2, P3, P7 and P8 are produced to show that the cheque was returned as payment was stopped. Ext.P7 also shows that during the relevant time petitioner had no sufficient funds in his account. Respondent No.2 gave evidence as PW1 and testified to his case. In his evidence he stated that he was a teacher by profession and that petitioner was acquainted to him since 10 years (of his giving evidence in the court below). Petitioner is residing about five kilometers Crl.R.P.No.3005/2004 2 away from his house . On 19.11.1997 petitioner approached him and requested for a loan of Rs.1,00,000/-. Petitioner again come to the house of respondent No.2 on 19.12.1997 when the latter lent the sum of Rs.1,00,000/-. Petitioner agreed to repay the amount within one month and for the discharge of that liability issued the cheque in question. He denied the suggestion that he got the cheque from DW2 with whom he had financial transactions. 3. Case pleaded by petitioner is that he had no transaction with respondent No.2, nor issued any cheque to him. Instead, he had given the cheque to his nephew, DW2 from whom he had borrowed certain amount. DW2 handed over the cheque to respondent No.2. Petitioner gave evidence in that line as DW1. He proved Ext.D1, copy of ledger extract in the account of respondent No.2. DW2 supported petitioner. He stated that he had transaction with respondent No.2 and on the latter demanding cheque as security he obtained the cheque from his aunt (wife of petitioner), filled up and handed over the same to respondent No.2. Courts below were not inclined to accept the case set up by the petitioner, found in favour of due execution of the cheque, that petitioner failed to rebut presumption under Section 139 of the Act and held him guilty for offence punishable under Section 138 of the Act. 4. Though the apparent reason for dishonour of the cheque was as payment was stopped it is seen from Ext.P7 that during the relevant time petitioner had no sufficient funds in his account to honour the cheque for Rs.1,00,000/-. 5. It is not disputed, and proved by Exts.P4 to P6 that respondent Crl.R.P.No.3005/2004 3 No.2 gave statutory notice to the petitioner intimating the dishonour and demanding payment of the amount. 6. Now the question is whether finding of courts below as to due execution of the cheque suffered any illegality, irregularity or impropriety. Respondent No.2 when examined as PW1 stated that petitioner initially came to his house on 19.11.1997 and requested loan of Rs.1,00,000/-. Petitioner again came to his house on 19.12.1997 on which day he lent Rs.1,00,000/- to the petitioner. He claimed that he had Rs.50,000/- with him and the balance amount was withdrawn from his account in the Syndicate Bank. Obviously to disprove that contention of respondent No.2, petitioner produced the ledger extract in the account of respondent No.2. Going through Ext.D1, it is seen that on 9.12.1997 respondent No.2 had deposited Rs.1,00,000/- in his account and another sum of Rs.50,000/- was deposited by him in that account on 12.1.1998. There is withdrawal of Rs.1,00,000/- from that account on 24.2.1998. If the case of respondent was that he lent the sum of Rs.1,00,000/- on 19.12.1997 withdrawing Rs.50,000/- from his account, no such withdrawal is seen in Ext.D1 on that day. But, for that reason alone case of respondent No.2 cannot be rejected for, what can be said only is that case of respondent No.2 that of the sum of Rs.1,00,000/- Rs.50,000/- was raised by withdrawing that amount from his account is not correct. That does not affect the capacity of respondent No.2 to raise Rs.1,00,000/-. Ext.D1 produced by the petitioner shows that respondent No.2 was having sufficient means and had the capacity to deposit substantial amounts in his account. I am also to look into the evidence on Crl.R.P.No.3005/2004 4 record to decide whether case of respondent No.2 regarding the transaction and execution of the cheque. 7. That, Ext.P1 contained the signature of petitioner and is drawn on the account maintained by him are not disputed and proved by respondent No.2. Petitioner would say that he had some transaction with DW2, his nephew to whom he handed over the cheque as security and DW2 handed over that cheque to respondent No.2. But, what DW2 stated is not that he had money transaction with the petitioner and as security he took the cheque. Instead, he would say that he had transaction with respondent No.2 who demanded cheque as security and thereon, he obtained the cheque from his aunt (wife of petitioner). That is not the case pleaded by the petitioner as DW1. Moreover, it is not disputed that DW2 is the nephew of DW1. DW2 would say that he is not in good terms with petitioner (DW1) and that he came to the court to speak the truth as requested by the brother of petitioner . He claimed that he had documents with him to prove his transaction with respondent No.2 . But when asked why he did not produce those documents in court, his answer was that brother of petitioner (DW1) did not ask him to produce the documents. When that question was repeated, he stated that he has no documents with him. Thus apart from the interested version of DW2, there is no evidence to show that he had any dealings with respondent No.2 and that he could hand over the cheque to respondent No.2. It is difficult to believe that wife of petitioner handed over the cheque to DW2. That version of DW2 does not inspire confidence. Crl.R.P.No.3005/2004 5 8. As against the above version of the petitioner as to how else the cheque reached respondent No.2, it is interesting to note from the letter of stop payment sent by the petitioner to his bank appended to Ext.P7 that what is stated there is that his cheque book containing cheque leaves from 867801 to 867825 ( it takes in Ext.P1 bearing No.867815) was lost and hence he may be issued a fresh cheque book. At the same time, he also requested that payment as per the cheques he lost may be stopped. In other words, as against his version that he handed over the cheque to DW2 who in turn handed over the same to respondent No.2, what is stated in the letter of stop payment appended is that he lost the cheque book. That also is a circumstance to disbelieve the version of petitioner as DW1. Moreover, inspite of getting a statutory notice about the dishonour of the cheque and demanding payment of the amount, petitioner did not reply. 9. According to respondent No.2, the cheque was brought to him written by the petitioner and it was signed in his presence. DW2 admitted that he filled up the cheque and gave to respondent No.2. Thus, it is clear that the cheque was not filled up by respondent No.2 or, anybody attached to him. In these circumstances courts below are justified in rejecting the version of the petitioner and his evidence and concluding that the petitioner issued the cheque in favour of respondent No.2 for the discharge of a legally enforceable debt/liability. Petitioner was not successful in rebutting that presumption. Hence conviction of the petitioner does not require interference. 10. Learned magistrate sentenced petitioner to undergo simple Crl.R.P.No.3005/2004 6 imprisonment for six months. Substantive sentence awarded to the petitioner was modified by the appellate court as simple imprisonment till rising of the court. That required no interference. 11. Learned magistrate directed petitioner to pay compensation of Rs.1,90,000/- to respondent No.2 and in default of payment, to undergo simple imprisonment for six months. The amount of compensation payable was modified by the appellate court as Rs.1,35,000/- and the default sentence was modified as simple imprisonment for three months. It is contended that amount of compensation fixed is excessive. According to the learned counsel for respondent No.2, compensation fixed is reasonable since the cheque is of the year 1998. Still then, considering the amount involved and rate of interest payable, I am inclined to think that Rs.1,25,000/- is sufficient compensation to respondent No.2. Hence, compensation payable by the petitioner is modified accordingly. Resultantly, this revision petition is allowed in part to the following extent: i. Compensation payable to respondent No.2 is fixed as Rs.1,25,000/- (Rupees One lakh and twentyfive thousand only). ii. Petitioner shall deposit the compensation as ordered hereby for payment to respondent No.2 in the trial court within three months from this day failing which, he shall undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance with Crl.R.P.No.3005/2004 7 direction No.ii if petitioner paid the compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the aforesaid time. iv. Petitioner shall appear in the trial court on15.9.2009 to receive the sentence. Crl.M.A.No.13581 of 2004 will stand dismissed. THOMAS P.JOSEPH, Judge. cks