IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 Crl.Rev.Pet.No. 3105 of 2010 (C) ----------------------------------- ( CRA.163/2006 of ADDL.SESSIONS COURT (ADHOC-III), THIRUVANANTHAPURAM CC.697/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------- SUSHAMA, SOBHA BHAVAN, S.N.COLLEGE, KOLLAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. K.SOMAN, KOLLANVILA VEEDU, CHITTATTINKARA DESOM, ATTINGAL VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3105 of 2010 ------------------------------- Dated this the 2nd day of November, 2010. O R D E R Aggrieved by the order of conviction and sentence imposed against the accused in a prosecution for an offence punishable u/s.138 of Negotiable Instruments Act, the accused approached this court by filing the above revision petition. 2. The case of the complainant is that the accused borrowed a sum of Rs.2,00,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 7.10.2002 for an amount of Rs.2,00,000/-. According to the prosecution, when the above cheque presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-I, 2 Crl. R.P.No.3105 of 2010 Attingal, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.697/03. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P6 series were marked. From the side of the defence, Dws.1 and 2 and Exts. D1 to D6 were also produced and marked. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/ accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/ revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 2 months and also directed him to pay a sum of Rs.2,02,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision 3 Crl. R.P.No.3105 of 2010 petitioner was directed to undergo simple imprisonment for 3 months. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 18.6.2010 in Crl.A.163/06, the Court of Addl. Sessions Judge (Fast Track Court-III), Thiruvananthapuram, allowed the appeal only in part. Thus while confirming the conviction, the sentence of imprisonment is modified and reduced to one day simple imprisonment ie., till the rising of the court and in all other respects, ie., with respect to the direction to pay compensation, the compensation amount and the default sentence, the trial court's direction are confirmed. It is the above conviction and sentence challenged in this revision petition. 4. I have heard Adv.Sri.Pirappancode V.S.Sudhir, the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner vehemently argued that, the trial court as well as the lower 4 Crl. R.P.No.3105 of 2010 appellate court committed wrong in holding the guilt of the revision petitioner, especially when the revision petitioner has established a probable case and thereby rebutted the presumption. The learned counsel vehemently submitted that, in the evidence of PW1 there is a serious contradiction and improvement, regarding the actual place of transaction claimed by the complainant. It is also the submission of the learned counsel that, the defence version, that the cheque in question was one among the two cheques given to the son-in-law of the complainant by the husband of the revision petitioner was not properly considered by the courts below. The learned counsel also submitted that right from the reply notice itself, the stand taken by the defence is to the effect that while denying the transaction claimed by the complainant, the specific case of the defence is that the husband of the revision petitioner had transaction with the son-in-law of the complainant and thus when the husband of the revision petitioner obtained an amount from the son-in-law during the year 1999, he had issued two 5 Crl. R.P.No.3105 of 2010 cheques and though the said liabilities have already discharged by the husband, the cheque in question was not returned and the same were reached in the hands of the complainant through the daughter of the complainant because there was difference of opinion among the daughter of the complainant and his son-in- law. On the basis of the above version and supported by Ext.D1 statement of account of the bank, which would show that there was no transaction after 22.11.2000 and therefore according to the learned counsel, the entire case of the complainant is false and the same was not proved beyond reasonable doubt. 6. I am unable to sustain the above contentions and pleadings. At the outset it has to be noted that, the courts below have concurrently found in favour of the complainant and rejecting the contention advanced by the defence. It has to be noted that the complainant himself was mounted to the box and deposed regarding the transaction and in terms of the averments contained in the complaint and he had produced Ext.P1 cheque from his possession and the said cheque is 6 Crl. R.P.No.3105 of 2010 pertained to the account of the revision petitioner and the same contain his signature. In order to circumvent the above evidence of the case of the complainant, the plea set up by the accused is to the effect that the cheque in question is one among the two cheques given to the son-in-law of the complainant during the year 1999 connected with a transaction between the husband of the revision petitioner and the said son-in-law of the complainant. It is also the case of the revision petitioner that, those liabilities were discharged by the husband of the revision petitioner. The trial court in its judgment through an elaborate discussion that contained in para 7 of its judgment found that the said version of the defence is false as the same was not substantiated. I am not proposed to reproduce the findings or the observations entered into by the trial court. In order to establish the above part of the defence version, no evidence is adduced and no contemporary document is produced. Therefore mere denial or explanation is not sufficient to substitute the legal requirement of rebutting the presumption. When the accused 7 Crl. R.P.No.3105 of 2010 pleaded that the cheque in question reached in the possession of the complainant, at least it is his primary duty to establish or probabilise that the cheque in question was entrusted with the son of the complainant. But there is no evidence or material. Mere assertion is not sufficient. It is true that regarding the place of transaction claimed by the complainant, there is some improvement, which according to me is not sufficient to rebut the presumption which is otherwise in favour of the complainant by virtue of S.118(a) and 139 of Negotiable Instruments Act, especially when the complainant produced the cheque in question from his possession and supported by his oral evidence. In the light of the above facts and circumstances and the materials on record, I find no reason to interfere with the order of conviction recorded by the courts below and accordingly the conviction recorded by the courts below is approved. 7. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may 8 Crl. R.P.No.3105 of 2010 be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but subject to other facts and circumstances involved in the case. 8. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 7.10.2002, that too for an amount of Rs.2,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.2,00,000/- which belonged to the complainant is with the revision petitioner for the last 8 years. Considering the above facts and settled legal position, I am of the view that, while granting some time to the revision petitioner to pay the compensation, the amount can be enhanced slightly. In the result, this revision petition is disposed of confirming 9 Crl. R.P.No.3105 of 2010 the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment awarded by the courts below is confirmed and the revision petitioner is directed to pay a sum of Rs.2,35,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., within 3 months from today, and in default in paying the compensation amount within the time stipulated above, the revision petitioner is directed to undergo simple imprisonment for a period of 4 months. Accordingly, the revision petitioner is directed to appear before the trial court on 2.2.2011, to receive the sentence of imprisonment and to pay the compensation amount as fixed by this court. In case, any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. The execution of warrant if any, pending 10 Crl. R.P.No.3105 of 2010 against the revision petitioner shall be deferred till 2.2.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/