IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 Crl.Rev.Pet.No. 291 of 2010() ----------------------------- CRA.286/2008 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.814/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): APPELLANT IN CRA/ACCUSED --------------------------------------------- K.S.MUHAMMED, S/O. SAIDU MUHAMMED AGED 52, KARIMBINAKKAL HOUSE, ALLAPRA, VENGOLA VILLAGE, VENGOLA KARA, KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE --------------------------------------------- 1. SUJEENA SHUKKOOR, W/O.SHUKKOOR AGED 30, CHAKKALAKKAL, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARUR TALUK, ERNAKULAM DISTRICT. 2. STATE OF KRALA, RPRESENTED BY PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. HRITHIWICK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/02/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.291 of 2010 ------------------------------- Dated this the 1st day of February, 2010 ORDER This revision petition is directed against conviction and sentence imposed by the courts below against the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. The first respondent herein is the complainant in C.C.No.814/2003 on the file of Judicial First Class Magistrate Court-I, Aluva. The allegation raised by the complainant is that she was a partner of concern in the name and style NOH Plywood and Boards, of which the wife of the accused and his daughter were also partners. It is also the case of the complainant that her mother-in-law was also one of the partners. According to the complainant herself and her mother-in-law retired from the firm on 24.4.2002 and at the time of final settlement a sum of Rs.5,80,000/- were due to the retiring partners and the accused undertook the liability and thus the accused issued the cheque in question for an amount of Rs.5,80,000/- and when the cheque presented for encashment 2 the same was dishonoured and thus the accused had committed the offence punishable under Section 138 of the Negotiable Instruments Act. 3. On the basis of the above set of allegations, the complainant approached the trial court by filing a proper complaint after compliance of the statutory requirement and upon such complaint cognizance was taken by the trial court and instituted C.C.814/2003. During the course of trial the complainant adduced evidence consists of the oral testimony of PWs.1 and 2 and also the documentary evidence such as Exts.P1 to P7. From the side of the defence DW1 was examined and produced Exts.D1 to D3 . After appreciation of evidence, the trial court found that accused is guilty under Section 138 of Negotiable Instruments Act and accordingly he is convicted and sentenced to undergo simple imprisonment for one year and to pay compensation of Rs.6,00,000/- to the complainant. 4. Aggrieved by the above conviction and sentence, the revision petitioner/accused preferred Crl.A.286/2008 before the lower appellate court and the said appeal was disposed of by the judgment dated 31.7.2009 confirming the conviction but the sentence was modified and reduced to imprisonment till rising of 3 the court and to pay a sum of Rs.5,80,000/- as compensation to the complainant under Section 357(3) Cr.P.C. When disposing the appeal the appellate court directed the revision petitioner/accused to surrender before the trial court on 15.10.2009 to receive the judgment. It is the above findings and verdicts of the courts below challenged in this revision petitioner. 5. I have heard Mr.Varghese Kuriakose, learned counsel appearing for the revision petitioner. The learned counsel emphatically submitted that the complainant has miserably failed to establish the execution of the cheque in question and therefore the essential ingredients of Section 138 are not established and therefore the courts below are wrong in convicting the revision petitioner. In support of the above submission, it is pointed out by the learned counsel that though the signature, in the cheque in question, is that of the accused the handwriting that contained in the cheque by which the endorsements are made therein are not proved by the complainant. Thus it is the case of the learned counsel that merely because the signature of the accused contained in the disputed cheque is not sufficient to hold that the accused has 4 executed and issued the same to the complainant. According to the learned counsel the complainant has got a primary duty to establish the essential ingredients of Section 138 of the Negotiable Instruments Act then only she can claim the presumption in favour of the complainant and can seek a conviction against the accused/revision petitioner. The two courts below which are the fact finding authorities after appreciation of the evidence on record found that the revision petitioner is guilty of the offence alleged against him. As the point raised by the counsel touching the very ingredient of Section 138 of the Negotiable Instruments Act, this court has to consider the above submission on the basis of the facts and circumstances and the materials and evidence on record. 6. Thus on examination of the facts and circumstances and available evidence and materials on record it can be seen that the partnership firm in the style and name mentioned above was came into existence on the basis of the partnership deed executed by the parties concerned on 15.1.2008. Admittedly the accused was not a party to the above deed and partnership. Ext.D2 is the partnership deed. But due to certain differences of opinion between the parties, as per Ext.D3, the complainant and 5 her mother-in-law has retired from the partnership business. Ext.D3 is the deed executed on 24.4.2002. At the time when the complainant and her mother-in-law retired from the partnership another agreement was executed i.e, Ext.P1. As per the said agreement though the revision petitioner is not a partner, who is the husband and father of the existing parties, had agreed to undertake the liabilities to the retiring parties and the same quantified as Rs.5,80,000/-. According to the complainant, for discharge of the said amount the accused/revision petitioner executed and issued the cheque in question to the complainant from the account maintained by the accused. The cheque was also dated 24.4.2002 on the date of Ext.D3 document. 7. On scrutiny of the evidence of PW1, the trial court as well as lower appellate court has found that it is the specific case of PW1 that the accused has undertook the liability that fixed as per Ext.P1 and towards the discharge of the said liability DW1 had made endorsement in the cheque in question which was in the presence of the accused and the accused himself put his signature and handed over the cheque to the complainant. The explanation offered by the revision petitioner as to how the cheque reached in the hands of the complainant is quite strange 6 and the same cannot be swallowed without a pinch of salt. According to him, he used to entrust the cheque leaves with his wife for business purpose as and when he went out of station. It is relevant to note that the entire claim of the complainant was connected with the partnership firm and on the retirement of the complainant and her mother-in-law from the said partnership. When PW2 the wife of the accused was examined she had admitted Ext.P1. She had further deposed that she had entered in to Ext.D1 partnership firm for and on behalf of her husband and she put to her signature therein. Thus according to her, she was only a name lender. 8. The lower appellate court has found that Ext.P1 document, Exts.D1 and D3 are executed on the same date and on the stamp papers purchased from the very same stamp vendor at Perumbavoor where accused residing. The serial number of the stamp papers for the above documents were also referred by the lower appellate court as 1444, 1445 and 1446. Out of the above three, stamp paper No.1443 for executing Exhibit P1 was purchased in the name of the accused. So the case put forward by PW1 is supported by the attending circumstances. The Exhibit D3 deed which also dated 24.4.2002, was produced from 7 the custody of the accused. Though the accused has disputed Exhibit P1, which contain his signature and bearing the same date that of Exhibit D3, no reliable explanation offered by the accused about Exhibit P1 and as to why his wife gave Exhibit P2 cheque to the husband of PW2. Thus the specific case made out by the complainant, remained as without any shake. It is pertinent to note that in this juncture PW1's case itself is to the effect that endorsement was made in the cheque by DW1 the counsel for the accused/revision petition and thus the cheque was given towards the discharge of the liability fixed as per Ext.P1. On the basis of above mentioned details and attended circumstances, the reasoning given by the appellate court and also the trial court appears to be correct and legal. As per Ext.D3 the revision petitioner was authorised to collect the dues in favour of the firm and as per Ext.P1 the accused had undertook the liability, which due from his wife and daughter towards the complainant and her mother-in-law. In the light of the above facts and circumstances and the conclusion arrived by the court below, I am of the view that the complainant has established the execution of the cheque in question and she is entitled to get the benefit of presumption under Section 139 of 8 the Negotiable Instruments Act. It is equally important to note that the accused/revision petitioner has failed to discharge his duty rebutting the presumption by adducing cogent and satisfactory evidence. It is pertinent to note that the complainant has got a definite case regarding the liability and the execution of the cheque and as to how the cheque was reached in her hands. There is no material produced by the accused/revision petitioner to shake the evidence in support of the above pleadings of the complainant . Therefore, I find no error or irregularity or illegality with the findings of the courts below and I have no hesitation to approve such findings and the consequent conviction of the accused. 9. Learned counsel for the revision petitioner submitted that nine months time may be granted to the accused/revision petitioner to surrender before the court below and to pay the amount ordered against him. Considering the facts and circumstances involved in the case, I am inclined to grant some time for the appearance and also making the payment, but subject to certain conditions the time sought, by the counsel as such, cannot be allowed. Admittedly the complainant and her mother-in- law retired from the firm as early as on 24.4.2002 on 9 which date the cheque was given towards the discharge of the liability. Thus for the last 8 years an amount of Rs.5,80,000/- was remain unpaid and the complainant was denied the amount and also denied the benefit of the judgments of the courts below. It is also relevant to note that when the appeal was disposed of by the lower appellate court on 31.7.2009 the revision petitioner was granted time up to 15.10.2009 for his appearance. It is also relevant to note that lower appellate court interfered with the sentence of one year imprisonment awarded by the trial court and reduced the same to one day imprisonment i.e, till the rising of the court. Under the above circumstances, the prayer of the counsel for nine months time cannot be allowed. The accused is a business man and no mitigating circumstances brought out to show any leniency to interfere with the amount fixed by the courts below to his favour. But considering the fact that I am proposed to grant some time to make the payment, the amount can be enhanced. Thus considering the totality of the facts and circumstances involved in the case, I am of the opinion that the amount originally fixed by the trial court can be restored and three months time can be to pay the amount, for the ends of justice. 10 10. In the result, the revision petitioner is directed to appear before the trial court on 3.5.2010 and to pay the amount of Rs.6,00,000/- as compensation to the complainant under Section 357(3) of Cr.P.C., on the date of his appearance before the court below. If there is any failure on the part of the revision petitioner in appearing before the court below and making the said amount, the trial court is free to take coercive steps for procuring the presence of the revision petitioner and to execute the sentence and order of compensation. V.K.Mohanan, Judge cms