IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.Rev.Pet.No. 234 of 2002(C) ------------------------------ CRA.434/1999 of 1ST ADDL. SESSIONS COURT, THRISSUR CC.313/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------------ SOMAN, S/O. VELAYUDHAN, UNNIARAM PURAKKEL, VALAPPAD AMSOM, CHAVAKAD TALUK, THRISSUR DIST. BY ADV. MR.M.K.DILEEP KUMAR RESPONDENT/RESPONDENT/COMPLAINANT: ---------------------------------------------------------------------- 1. KUTTAPPAN, S/O. RAVUNNY, CHERKARA - THAZHATHUPURAYIL, NATTIKA AMSOM, CHAVAKAD TALUK, THRISSUR DIST. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT, ERNAKULAM. R1 BY ADV. MR.RAJIT R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON C.M.P.NO.14354/2004 IN CRL.R.P.NO.234/2002 DISMISSED 23/03/2009 SD/- S.S.SATHEESACHANDRAN, J U D G E. /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.234 OF 2002 (C) ----------------------------------- Dated this the 23rd day of March, 2009 O R D E R This revision is filed by the accused, who suffered conviction concurrently for the offence punishable under Section 138 of the Negotiable Instruments Act, for short the 'N.I.Act'. Negativing his plea of not guilty, the learned Magistrate, after trial, found him guilty. On conviction, he was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.60,000/- with default term of simple imprisonment for 1½ months more. Out of the fine amount, if realised, Rs.53,800/- was directed to be paid as compensation to the complainant. In the appeal, the Sessions Judge confirmed the conviction, but modified the sentence to simple imprisonment for three months and directed payment of the entire sum of Rs.60,000/- as compensation to the complainant under Section 357 (3) of the Code of Criminal Procedure. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, the accused CRL.R.P.234/2002 2 has preferred this revision. 2. I heard the counsel on both sides. The learned counsel for the revision petitioner/accused, assailing the conviction, contended that the complainant had not adduced any reliable and convincing evidence to show that Ext.P1 cheque was issued by the accused towards discharge of debt arising under a chitty transaction, which was so alleged in his complaint. The complainant was a subscriber to a chitty conducted by a concern, and on termination of the chitty, the amount was not paid to him, was the allegation raised in the complaint. Towards discharge of that liability arising under the chitty, the accused, who conducted the kuri company, issued Ext.P1 cheque, was his case. According to the accused, when such a case was set up, in order to prove the offence of 138 of the N.I.Act on dishonour of that cheque, the accused must establish the transaction and also the connection of the accused with the kuri company. That having not been established, it is submitted the conviction founded against him must be set aside. I am not impressed by the submission CRL.R.P.234/2002 3 made by the counsel. Admittedly, Ext.P1 cheque, the dishonour of which had given rise to the prosecution of the accused arose from an account maintained by him. The cheque was dishonoured due to insufficiency of funds in his account is also not disputed. Statutory notice intimating dishonour and demanding the sum covered by the cheque issued by the complainant was returned unclaimed. The accused, when questioned under Section 313 of the Cr.P.C., would state that he received the notice, but did not send a reply. Whatever that be, notice was returned unclaimed has to be taken that it was properly served. After refusing to accept the notice, in trial the accused has set up a plea that the cheque was handed over to another, one Santhosh, a friend of the complainant, with respect to a different transaction. Suggestive questions put up to the complainant, when he was examined as PW1, do not even indicate that the cheque was issued in blank form with signature alone. Other than putting forth some suggestions that Ext.P1 cheque was handed over to another, it is seen there is not even a specific denial by the accused, when the complainant was in the box, CRL.R.P.234/2002 4 that he had no connection with the kuri company or of the chitti conducted by that company, which according to the complainant, had led to the issue of Ext.P1 cheque. To establish an offence under Section 138 of the N.I.Act, the complainant no doubt has to prove that the cheque involved was duly executed by the complainant. Merely by setting forth a defence that the cheque was issued in blank form, no burden is cast upon the complainant to show that the cheque, with all entries therein, was made by the accused at the time it was handed over. A negotiable instrument can be issued in blank form with authority to payee to fill up the entries, as seen from Sections 20 and 49 of the N.I.Act. That being so, the defence canvassed by the accused was rightly repelled by the learned Magistrate after having anxious consideration over the materials produced and analysing the proved facts and circumstances of the case. The finding entered by the learned Magistrate has also been approved by the Sessions Judge in appeal. There is no scope for interference with the finding arrived at both the courts below, that the cheque had been issued by the accused towards discharge of a liability CRL.R.P.234/2002 5 which he had with the complainant. Conviction of the accused passed by the learned Magistrate and upheld by the Sessions Judge, deserves only to be confirmed, I do so. Now coming to the question of sentence, having regard to the facts and circumstances involved, I find that the substantive punishment of prison term imposed calls for modification. Incarceration of an offender under the N.I.Act, on his conviction, in the absence of exceptional circumstances is not necessary or warranted to meet the ends of justice. No such exceptional circumstances is involved in the present case. So, confirming the conviction, the sentence is modified as hereunder. The accused is sentenced to undergo imprisonment till the rising of the Court, with direction to pay compensation of Rs.60,000/- to the complainant under Section 357 (3) of the Cr.P.C. within two months from the date of this order. In default of payment of compensation, the accused shall undergo simple imprisonment for three months. The accused shall appear, and his sureties shall produce him on 8th June, 2009, before the Judicial First Class Magistrate CRL.R.P.234/2002 6 Court, Chavakkad, and the learned Magistrate shall execute the sentence as directed. Amount, if any, deposited by the accused, during the pendency of the proceedings, shall be given credit to in the compensation fixed. The revision is disposed of accordingly. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.234 OF 2002 (C) --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009