IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 CRRP.No. 1295 of 2006 (B) CRA.270/2004 of ADDL. SESSIONS JUDGE, ALAPPUZHA. CC.183/2001 of J.M.F.C.,AMBALAPUZHA REVISION PETITIONER/APPELLANT/ACCUSED. ANAS.M. S/O.MOOSA, AGED 31 YEARS, DARULKARAM VADUTHALA JETTY P.O (POOCHAKKAL P.S. CHERTHALA ALAPPUZHA. BY ADVS.SRI.K.K.MOIDEEN SRI.R.SANTHOSH BABU RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE. 1 ABDULLA, MOOLAYIL VEEDU, NEERKUNNAM ALAPPUZHA. 2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. R1 BY ADV. SRI.C.A.CHACKO R2 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dlk S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1295 OF 2006 ----------------------------------------- Dated this the 20th day of December 2011 ORDER Revision is against the conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently by the two courts below. Sentence imposed against the accused, as modified by the sessions judge in appeal is simple imprisonment for a period of six months with direction to pay a sum of `.4,50,000/- as compensation to the complainant with default term of simple imprisonment for a further period of three months. Feeling aggrieved, the accused has preferred this revision. 2. Notice given, the 1st respondent/complainant has entered appearance. 3. The case of the complainant was that Ext.P1 cheque for a sum of `.4,50,000/- was issued by the accused towards discharge of a legally enforcible liability towards him and that cheque on presentation was dishonoured due to insufficiency of funds in the account maintained by the accused. Statutory notice issued on such dishonour was not responded with payment and therefore a complaint was filed to prosecute the accused for the offence under Section 138 of the Crl.R.P No.1295 OF 2006 2 NI Act. The accused had set up a defence that a blank unsigned cheque issued to his father-in-law, DW3, had been handed over by his father-in-law to the complainant, and forging his signature and making fraudulent entries the instrument was presented for encashment and on its dishonour the complaint was filed raising false allegations. To sustain such defence, apart from examining himself as DW2, he got examined three more witnesses including his father-in-law, and also exhibited in evidence Exts.D1 to D3. The magistrate found no merit in the defence so set up by the accused to resist his prosecution. The sessions judge too found that the challenge against the execution of the instrument and also transaction with the complainant contending that the instrument issued to another in blank form had been fabricated with fraudulent entries and even with his signature was totally devoid of any merit. 4. Going through the judgments rendered by the learned magistrate and also the sessions judge, I find no infirmity in the finding on facts concurrently entered by the two courts below repelling the defence so canvassed by the accused, after meticulous appreciation of the evidence tendered by both sides. Evidently, the accused who set up a challenge did not seek assistance of the court to send the disputed document for comparison with his admitted signatures to an Crl.R.P No.1295 OF 2006 3 expert, to sustain his plea that it was forged. The evidence of the accused and also his witness including his father-in-law, was found by both the courts unworthy of acceptance and that of the complainant and his witness reliable and trustworthy. Execution of the cheque by the accused has been brought home by the evidence tendered by the complainant and his witness was the view formed by the magistrate after appreciation of the evidence tendered. When that be so, a reverse onus is cast upon the drawer of the cheque/accused under Section 139 of the Act to rebut the presumption that the cheque had not been issued towards discharge of a debt or legally enforcible liability due from him. When the defence canvassed by him was found unworthy of merit, and the execution of the instrument having been established by convincing evidence, reliance placed on Section 139 of the NI Act by the courts below to found the conviction against the accused, concurrently, is unassailable. 5. So far as the sentence imposed against the accused, I find, the substantive term of imprisonment of six months warrants modification. In awarding sentence for the offence under Section 138 of the NI Act the outlook of the court should be more to compensate the complainant than be punitive. Of course, in a deserving case where exceptional circumstances are made out where the drawer of Crl.R.P No.1295 OF 2006 4 the instrument on its dishonour is convicted, it is open to the court to impose substantive term of imprisonment. No such exceptional circumstance has been made out in this case. That being so, substantive term of imprisonment imposed against the accused has to be reduced to imprisonment till the rising of the court retaining the sum fixed as compensation with default term. 6. Affirming the conviction, sentence imposed against the accused is reduced to imprisonment till the rising of the court retaining the compensation awarded with the default term of imprisonment. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge