IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 Crl.Rev.Pet.No. 1466 of 2008() ------------------------------ CRA.369/2006 of SESSIONS COURT, PATHANAMTHITTA CC.1336/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- SUBHASH V.GEORGE, VADAKKEVEETTIL HOUSE, VETTIPURAM, PATHANAMTHITTA P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS/ STATE AND COMPLAINANT: ------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABRAHAM PHILIP, KONNAYIL HOUSE, KARUVATTAMURI, PERINGANADU VILLAGE, ADOOR. SRI.RENJITH B.MARAR FOR R2 SRI.L.RAJESH NARAYAN FOR R2 SMT.LAKSHMI.N.KAIMAL FOR R2 SMT.PRIYA PRASANTH FOR R2 PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2009, ALONG WITH CRL.R.P.No.1465 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1465 of 2008 & Crl.R.P.No.1466 of 2008 --------------------------------------- Dated this 20th day of August 2009 ORDER These revisions though, arise from cases separately tried and disposed of, I am disposing of the same by a common order since the parties are the same and the contentions raised are also the same. 2. Crl.R.P.No.1465 of 2006 arises from the judgment of learned Sessions Judge, Pathanamthitta in criminal appeal No.371 of 2006 arising from C.C.No1337 of 2005 of the court of learned Judicial Magistrate of First Class-1, Pathanamthitta. Petitioner is found guilty of the offence punishable under section 138 of the Negotiable Instruments Act (for short, “the Act”). Learned magistrate sentenced him to undergo simple imprisonment for six months and directed payment of compensation of Rs. Five Lakhs with default sentence of imprisonment for three months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court and converted the compensation as fine with a default sentence of imprisonment for one month. Crl.R.P.No.1466 of 2008 arises from the judgment in criminal appeal No. 369 of 2006 which arises from C.C.No1336 of 2005. In that case petitioner was convicted and sentenced to undergo simple imprisonment for six months. There was a direction for payment of compensation of Rs.80000/- with a default Crl.R.P.No.1465 & 1466 of 2008 2 sentence of imprisonment for two months. Appellate court has modified the substantive sentence as simple imprisonment till rising of the court and converted compensation as fine for the same amount with default sentence of imprisonment for two months. 3. The above two cases are filed by one Abraham Philip, respondent No.2 herein against petitioner for the offence as above stated. He stated that petitioner borrowed the said amounts from him and for repayment of the same issued cheques dated 18-08-2009 for Rs. Five Lakhs (C.C.No.1337 of 2005) and Rs.80000/- (C.C.No1336 of 2005). The cheques on presentation were dishonoured for insufficiency of funds. Inspite of service of statutory notice on petitioner he has not responded either by way of reply or, by compliance. Hence the complaints. Respondent No.2 gave evidence as PW1 and proved Exts.P1 to P6 in each of the cases. Exts.P1 in both the cases are the cheques. Dishonour of those cheques for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved in both cases by Exts.P4 to P6. When questioned under section 313 of the Code of Criminal Procedure (for short, “the Code”) petitioner claimed that he had borrowed Rs. Fifteen Lakhs from respondent No.2 and repaid Rs. Eleven Lakhs. At that time signed blank cheques were given as security. He repaid Rs. Eleven Lakhs, the balance payable being only Rs.Four Lakhs which he is ready and willing Crl.R.P.No.1465 & 1466 of 2008 3 to pay. Courts below found in favour of due execution of the cheques and held that petitioner failed to rebut the presumption under section 139 of the Act. Consequently petitioner was found guilty, convicted and sentenced as above stated. 4. It is contended by learned counsel for petitioner that due execution of the cheques is not proved. It is also contended that courts below have not considered the contention raised by petitioner and reached a conclusion that petitioner issued the cheques for the discharge of a debt/liability. A further contention is that in C.C.No.1336 of 2005 (Crl.R.P.No.1466 of 2008) there is no proper questioning of petitioner under section 313 of the Code. Learned counsel stated that respondent No.2 caused another case to be filed through one Lucy Sebastian who is respondent No.2 in Crl.R.P.No.1470 of 2008. Learned counsel has placed reliance on the decisions in Shaikh Maqsood V. State of Maharashtra & Ranvir Yadav V. State of Bihar (2009(6) SCC 583 and 595). Learned counsel for respondent No.2 contended that on the evidence on record, the conclusion reached by the courts below are justified and no interference is required. 5. No doubt, a mere admission or proof of signature in the cheques did not amount to admission or proof of its due execution. It is also not disputed that when the execution of the cheque is disputed the question of drawing the presumption under section 139 of the Act Crl.R.P.No.1465 & 1466 of 2008 4 would arise only on the complainant proving due execution of the cheque. It has been further held that even the presumption under section 139 of the Act could be rebutted by the drawer of the cheque either by producing direct evidence or by relying on the circumstances brought out in the case. I shall refer to the evidence in this case for the purpose of deciding whether the finding entered by the courts below is illegal, irregular or improper. 6. Respondent No.2 has given evidence as PW1. He stated that he had transaction with petitioner since 2003 onwards. In C.C.No.1336 of 2005 he stated that the amount was due to him as per the demand promissory note and that the same was returned on petitioner issuing the cheque in his favour. In C.C.No.1337 of 2005,, he claimed that petitioner borrowed the amount and for repayment of the said amount issued cheque dated 11-08-2005. In chief affidavit he stated that it was in repayment of the said sum of Rs. Five Lakhs given to the petitioner by way of loan that petitioner issued the cheque. In cross examination he stated that he had other transaction also with the petitioner. The trial court as well as appellate court stated that the cheques are signed by the petitioner and that execution of the cheque is proved. Therefore presumption under section 139 of the Act arose and petitioner has not rebutted that presumption. Contention of learned counsel is that courts below have not considered relevant Crl.R.P.No.1465 & 1466 of 2008 5 contention raised by the petitioner. 7. It is not disputed by the petitioner also that he had issued the cheques to respondent No.2 though according to him, it was by way of security. He does not also dispute that he had financial transaction with respondent No.2. According to him, he had borrowed Rs. Fifteen Lakhs from respondent No.2 and returned Rs.Eleven Lakhs. He claimed that he had given the cheques as a security. On going through the evidence of respondent No.2 there is no suggestion that the cheques were given in signed blank form at the relevant time. There is no cross examination of respondent No.2 in that line. There is also no suggestion to respondent No.2 that the cheque was filled up by the latter or somebody else on behalf. Therefore, it is not open to the petitioner to now contend that signed blank cheques were given to respondent No.2. I stated that the signature in cheques (Ext.P1) is not disputed. On going through the cross examination of respondent No.2 it is seen that apart from making certain suggestions to him there was no serious attempt to challenge his evidence regarding the transaction leading to execution of the cheque. There is no evidence to show either that petitioner borrowed Rs. Fifteen Lakhs or returned Rs.Eleven Lakhs to respondent No.2. It is also to be born in mind that inspite of being served with a statutory notice, petitioner has not replied to the same. It is difficult to think that inspite of a fairly large amount being Crl.R.P.No.1465 & 1466 of 2008 6 claimed by way of cheques petitioner without any reason whatsoever refrained from giving a reply. Petitioner has no acceptable explanation as to why the statutory notice went unanswered. These circumstances also are to be taken note of while considering the contention of petitioner. 8. Yet another contention advanced by learned counsel is that the complaint in these cases and the complaint preferred by Lucy Sebastian are identically prepared by the same counsel and filled from the same office. So far as a copy of the complaint filed by Lucy Sebastian is not introduced in evidence in these cases I am afraid, I cannot consider the contention raised by learned counsel in that regard. On going through the evidence on record and considering the contention raised by petitioner I find no illegality, irregularity or impropriety in the order under challenge. 9. What remained for consideration is the contention that in C.C.No.1336 of 2008 there is no proper questioning of petitioner under section 313 of the Code. Learned counsel points out and rightly, that though amount covered by the cheque is only Rs.80000/-, question put to petitioner is regarding the cheque for Rs. Five Lakhs. It is in this connection that learned counsel placed reliance on the decisions above stated. The apex court has alerted the courts about the necessity for proper compliance with section 313 of the Code. Question is whether Crl.R.P.No.1465 & 1466 of 2008 7 on account of the above said mistake or discrepancy in the statement in the question put to the petitioner under section 313 of the Code, he has been prejudiced. It is not as if every non compliance with section 313 of the Code would vitiated the trial. It must be shown that the petitioner is prejudiced on account of the way in which question has been put to him. In this case I find from the relevant question put to the petitioner that though the amount mentioned therein is Rs. Five Lakhs, it is stated that it is in respect of Ext.P1 (cheques) given to respondent No.2 and marked in the chief affidavit. It is also seen the number of the cheque as well as name of the drawee bank are mentioned in the question. Details of the cheque has been given in the complaint a copy of which was given to the petitioner. It is the very same cheque which is introduced by respondent No.2 as Ext.P1 the amount of which is Rs.80000/-. Therefore there was no reasonable possibility of petitioner being mislead by the cheque amount mentioned as Rs. Five Lakhs as against Rs.80000/-. Moreover the answer given by petitioner is also relevant. He merely denied the evidence against him. In these circumstances I am persuaded to think that there is no perceivable prejudice caused to the petitioner on account of the defect pointed out by the learned counsel the questioning under section 313 of the Code. 10. In C.C.No.1337 of 2005, substantive sentence has been Crl.R.P.No.1465 & 1466 of 2008 8 modified by the appellate court as simple imprisonment till rising of the court and compensation has been converted as fine of Rs. Five Lakhs with default sentence of imprisonment for five months. Considering the facts and circumstances of the case and also the object of legislation, I am satisfied that fine can be converted as compensation payable to respondent No.2, if petitioner so choses directly to him. Similarly, fine awarded by the appellate court in C.C.No.1336 of 2005 also can be converted as compensation. Resultantly, these revisions are allowed in part to the following extent: 1. While the substantive sentence awarded to the petitioner as modified by the appellate court in both cases is retained, the sentence of fine in both the cases are set aside and the following directions are issued. 1).C.C.No.1336 of 2005 Petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.80000/- (Rupees Eighty Thousand Only) by way of compensation under section 357(3) of the Code on or before 20-04-2010 failing which petitioner has to undergo simple imprisonment for two months. 2).C.C.No.1337 of 2005 Petitioner is directed to deposit in the trial court for payment to Crl.R.P.No.1465 & 1466 of 2008 9 respondent No.2 Rs. Five Lakhs by way of compensation under section 357(3) of the Code on or before 20-04-2010 failing which petitioner has to undergo simple imprisonment for five months. 3).The default sentences shall run consecutively. 4).It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid 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 compensation within the period aforesaid in both the cases. 5).Petitioner shall appear in the trial court on 22-04-2010 to receive the sentence. Until then, execution of warrant against the petitioner in both the cases will stand in abeyance. THOMAS P JOSEPH, JUDGE Sbna/z