IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 630 of 2000 ----------------------------- ( CRL. APPEAL NO..320/1998 of SESSIONS COURT, THRISSUR CC.278/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY ) REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------- PURUSHOTHAMAN, S/O. MADHAVAN, KATTIL VEETTIL, KILLIMANGALAM VILLAGE,. TALAPPILLY TALUK, P.O. CHELAKKARA, THRISSUR DISTRICT. BY ADV. SRI.P. VIJAYA BHANU ADV. SMT.MINI JOHN PAREMALIL RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ----------------------------------------------------------------- 1. UNNIKRISHNAN V., S/O. CHIRAKKAL VALLADATHU BALAN NAIR, 'SINDHU NIVAS', REPRESENTED BY POWER OF ATTORNEY HOLDER AMMINI UNNIKRISHNAN, W/O. UNNIKRISHNAN. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) R2 BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No.630 of 2000 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 2nd day of November, 2008 O R D E R -------------- This revision arises from the concurrent findings entered by the courts below and conviction of revision petitioner under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Learned magistrate sentenced the revision petitioner to undergo simple imprisonment for three months and payment of fine of Rs.5,000/-. Appellate court while confirming the conviction modified the sentence as simple imprisonment for five days and compensation of Rs.55,000/-. Revision petitioner contends that the conviction of the revision petitioner is not legal and proper. Learned counsel for first respondent supported the findings entered by the courts below. 2. Case of the first respondent is that revision petitioner borrowed Rs.50,000/- from him and for the discharge of that debt, issued Exhibit P2, the cheque dated 1.6.1998. That cheque was dishonoured for insufficiency of funds on 4.7.1996. First respondent issued notice to the revision petitioner on 8.7.1996 intimating the dishonour and demanding payment. Notice was served on 11.7.1996. P.W.1, wife and Power of Attorney holder (Exhibit P1 is the Power of CRL. R.P. No.630 of 2000 -: 2 :- Attorney) of the first respondent gave evidence regarding the presentation and dishonour of cheque. According to her, transaction between revision petitioner and first respondent was when both of them were employed abroad but she has no direct information about the same. She claimed to have presented the cheque in the drawee bank on 4.7.1996. She claimed that the first respondent filed a suit for realisation of the amount and got a decree (Exhibit P8). P.W.2 is the Manager of the drawee bank and proved the dishonour of cheque for insufficiency of funds, which is not under challenge. According to P.W.2, first respondent himself had signed the cheque on its rear side and presented it in the bank on 4.7.1996. First respondent gave evidence as P.W.3 and testified to the transaction. He claimed that while himself and the revision petitioner were abroad, revision petitioner borrowed the amount from him and issued the cheque. He sent the cheque (Exhibit P2) to his wife, (P.W.1) to be presented in the bank. According to the revision petitioner, when himself and first respondent were working abroad in the same company, first respondent was running a kuri, he joined and prized it. At the time of payment, first respondent obtained a signed blank cheque from him as security and that cheque was misused. Revision petitioner examined D.W.1 who claimed to be a close relative of CRL. R.P. No.630 of 2000 -: 3 :- revision petitioner and spoke to the case of revision petitioner. But in cross examination he stated that he was working about 3000 kms. away from Damam where revision petitioner and first respondent were working. Learned magistrate was not inclined to believe the version of D.W.1 and found the revision petitioner guilty. According to learned counsel, findings entered by the courts below are not correct. 3. It is not very much in dispute that Exhibit P2 is a cheque drawn by the revision petitioner on his account and it contained his signature. It is also not in dispute that revision petitioner had handed over that cheque to the first respondent. Though admission or proof of signature in the instrument did not amount to admission or proof of due execution of the instrument, it goes a long way in proving the due execution of the instrument as normally a person is not expected or likely to sign a blank instrument and deliver it to another. It has come out in evidence that D.W.1 is a close relative of the revision petitioner, and since he was working 3000 kms away from the place of work of the revision petitioner and first respondent, there was no possibility of his witnessing the alleged delivery of signed blank cheque. There is no evidence to show that there was any such kuri transaction between revision petitioner and first respondent. Further fact borne out from the evidence of D.W.1 is that at the place where CRL. R.P. No.630 of 2000 -: 4 :- first respondent was allegedly working running a kuri, it was a crime to do so. In the circumstances, I do not find reason to think that the courts below went wrong in rejecting the evidence of D.W.1. 4. One discrepancy pointed out is that while according to P.W.1 she presented the cheque in the drawee bank on 4.7.1996, P.W.2 stated that cheque was signed on the back side by (P.W.3) himself, who presented the cheque. But P.W.2 need not have seen who had presented the cheque personally. This is clear from the evidence of P.Ws.1 and 3 that first respondent had sent the cheque to P.W.1 to be presented in the bank. It is possible, that P.W.3 had signed on the back side of Exhibit P2 when he sent it to P.W.1. At any rate, it is of no consequence whether the cheque was presented by P.W.1 or P.W.3 as it has nothing to do with the dishonour of the cheque. In the circumstances, conviction of the revision petitioner does not require interference. 5. So far as the sentence is concerned, counsel would say that revision petitioner has already undergone the sentence of imprisonment which counsel for the revision petitioner was not able to confirm. However, the appellate court has safeguarded the interest of first respondent by awarding compensation of Rs.55,000/-. Considering the nature and object of the legislation, I am inclined to CRL. R.P. No.630 of 2000 -: 5 :- think that simple imprisonment till rising of the court is sufficient in the ends of justice. Resultantly, this revision is allowed in part in the following lines: (i) The substantive sentence imposed on the revision petitioner is modified as simple imprisonment till the rising of the court. (ii) Compensation awarded by the appellate court is confirmed. (iii) Revision petitioner is granted three months’ time from this day to deposit the compensation in the trial court. (iv) Revision petitioner shall surrender in the trial court on 03.03.2009. Bail bond shall stand cancelled. Criminal Miscellaneous Petition No.3515 of 2000 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.639 OF 2000 =================== O R D E R 2ND DECEMBER, 2008