IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1570 of 2006() ----------------------------------------- CRA.62/2002 of ADDL. SESSIONS COURT (ADHOC)II KASARAGOD. CC.518/1998 of CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- B. IMAM ALI, AGED 40 YEARS, S/O.CHAPPAKKAL ABDRURAHIMAN HAJI, AZAD MANZIL, BELLUR PUTHUR, KASARAGOD TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS/RESPONDENTS/COMPLAINANT --------------------------------------------------------------------- 1. VIJAYAN NAMBIAR,S/O.LATE GOVINDAN NAMBIAR RESIDING AT MANIMOOLA, BANDADKA, KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 ADV. SRI.M.SASINDRAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== CRL.R.P. No.1570 OF 2006 ===================== Dated this the 27th day of November 2008 ORDER This revision petition is preferred against the judgment of the Addl.Sessions Court-II, Kasargod . It was filed against the conviction and sentence passed under Section 138 of the Negotiable Instruments Act in C.C.No.518 of 1998 of the Chief Judicial Magistrate Court, Kasargod. The complaint was initiated under Section 138 of the Negotiable Instruments Act and the trial court found the accused guilty and convicted him to undergo simple imprisonment for 9 months, which on appeal was modified to one of simple imprisonment for three months and to pay a compensation of Rs.1,20,000/-. It is against that decision the present revision is filed. 2. The case of the complainant is that the accused had borrowed a sum of Rs.1,20,000/- and towards discharge of liability he had issued a cheque dated 30.7.1998, which when presented for encashment, it was returned with the endorsement 'payment stopped by the drawer'. Thereafter a notice was issued and proceedings were initiated. The defence of the accused is a total denial and according to him he had lost the cheque leaves CRL.RP 1570/2006 -:2:- and it had been misused by the complainant to initiate proceedings. Both the courts below considered the documentary as well as oral evidence and decided to prefer the evidence of PW1 and held that there is sufficient evidence to prove the transaction. Learned counsel for the petitioner would contend that in a 138 case also the burden is on the complainant to prove the execution of the cheque and there is no presumption regarding the execution of the cheque under Section 139 of the NI Act. There cannot be any doubt about the correctness of that proposition. In this case there is sufficient evidence to establish the execution of the cheque. PW1 has been examined and he has spoken in line with the complaint. The Appellate Court held that though it was argued that there was an application for sending the signature for comparison, it has not been considered by the trial court. But, in order to avoid further delay, the appellate court itself took the task of comparing the admitted signature with the disputed signature. I am conscious of the fact that though it is permissible under Section 73 of the Indian Evidence Act, it is a hazardous method of comparison for the reason that the courts are not experts in comparing the signature. But the Apex Court had held that comparison of signature is not totally prohibited, but it can be taken as a piece of corroborative evidence if other material evidence is available to substantiate the same. PW1's evidence had been adduced in CRL.RP 1570/2006 -:3:- this case regarding the execution and on the background of that evidence, the appellate court has taken the task of comparing the signature to arrive at a decision regarding the execution of the cheque. The appellate court found that there was no mistake committed by the trial court in concluding that the petitioner had committed offence under Sec.138. I do not find any mistake in taking such an approach. 3. So far as the other ingredients are concerned, it is proved by sufficient documentary evidence and the stoppage of payment will not detract the offence under Section 138 because a clever litigant can issue a cheque and stop the payment thereby blocking the institution of a criminal prosecution under Section 138. From these discussions, I hold that there is nothing to interfere with the decision rendered by the courts below regarding conviction under Section138. 4. So far as sentence is concerned, I intend to modify the sentence to undergo imprisonment for one day, i.e. till the raising of the court and convert the compensation into that of fine which on realisation be disbursed to the complainant. In the result, the revision petition is disposed of as follows: (1) The conviction under Section 138 is sustained.(2) The sentence is modified and the petitioner is directed to undergo simple imprisonment for a day,i.e. till CRL.RP 1570/2006 -:4:- the raising of the court and to pay a fine of Rs.1,20,000/- which on payment shall be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for one month. (3) The revision petitioner shall present himself before the trial court for receiving sentence and for making payment of fine on 15.2.2009. In case of failure to be present, the trial court shall execute the sentence. (4) If any amount is deposited as compensation, it shall be converted into fine and the said amount shall be disbursed to the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-