IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 Crl.Rev.Pet.No. 1728 of 2010() ------------------------------ CRA.694/2009 of THE ADDL.SESSIONS JUDGE (ADHOC-II), ERNAKULAM ST.2104/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANTS/ACCUSED :- ------------------------------------------------------------------- DEEPA, W/O. RAJESH, KUMARA BHAVAN, PERUMANAPARAMBIL, CHALENCHERRY ROAD, THEVARA, KOCHI-13. BY ADV. MR.P.BABU KUMAR MR.P.YADHU KUMAR RESPONDENT(S)/RESPONDENT/COMPLAINANT :- -------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S. SREEGOKULAM CHITS & FINANCE COMPANY PVT. LTD., CORPORATE OFFICE AT NO.66, AROOT ROAD, CHENNAI-24, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, K.RAJENDRAN, ASSISTANT BUSINESS MANAGER, VYTTILA BRANCH, COCHIN CORPORATION BUILDING, KOCHI-19. R1 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1728 of 2010 --------------------------------- Dated this the 9th day of June 2010 O R D E R Challenging the conviction and sentence imposed against the accused, who is a lady in a prosecution for the offence under Sec.138 of the N.I.Act, she preferred this revision petition. 2. The allegation against the revision petitioner/accused is that the husband of the accused/revision petitioner was a subscriber of a chitty conducted by the complainant and the accused stood as a guarantor of the above chit and she issued a cheque dated 11.6.2008 for an amount of Rs.1,20,994/-. According to the complainant, when the above cheque presented for encashment it was dishonoured for the reason that there was no sufficient fund in the account maintained by the Crl.R.P.No.1728 of 2010 : 2 : accused. Consequently a notice was caused to sent to the accused informing her the dishonour of the cheque and demanding to pay the amount covered by the dishonoured cheque. But no payment was made. Therefore, the accused has committed an offence under Sec.138 of the N.I.Act. With the above allegation the complainant approached the court of the Judicial First Class Magistrate –IV, Ernakulam by filing a complaint upon which cognizance was taken under Sec.138 of the N.I.Act and instituted S.T.No.2104/2008. During the course of the trial, PW1 was examined and produced Exts.P1 to P6. No evidence was adduced from the side of the defence. Based upon the available materials and evidence the trial court has held that the complainant has established its case and accordingly held that Ext.P2 cheque was issued by the revision petitioner to discharge her liability. Thus, the revision petitioner is convicted under Sec.138 of the N.I.Act and sentenced her to undergo simple imprisonment till Crl.R.P.No.1728 of 2010 : 3 : rising of the court and directed to pay Rs.1,21,000/- as compensation to the complainant under Sec.357(3) of Cr.P.C. Aggrieved by the above order of conviction and sentence, though an appeal was filed by the revision petitioner, by judgment dated 3.4.2010 in Crl.A.No.694/2009, the Court of Sessions Judge (Adhoc-II), Ernakulam has confirmed the conviction recorded by the trial court but the sentence was modified and thus while retaining imprisonment till the rising of the court, the revision petitioner is directed to pay a fine of Rs.1,21,000/- and directed her to deposit the same within one month from the date of the appellate court judgment. It is also ordered that on realization of the fine amount, the same shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. It is the above order of conviction and sentence challenged in this revision petition. 3. I have heard Sri.P.Babu Kumar, the learned counsel appearing for the revision petitioner and also Crl.R.P.No.1728 of 2010 : 4 : perused the judgments of the courts below. 4. The learned counsel for the revision petitioner reiterating the stand of the accused taken in the trial court as well as the lower appellate court submitted that the complainant has failed to establish the transaction, execution and issuance of Ext.P2 cheque. It is also the case of the learned counsel that the court below convicted the accused simply by invoking Sec.139 of the N.I.Act. According to the learned counsel, courts below committed mistake extending the benefit of Sec.139 of the N.I.Act in favour of the complainant, when the complainant failed to establish the transaction and also the issuance of the cheque. According to the counsel, the accused/revision petitioner has disputed the signature, execution and issuance of the cheque. 5. On a careful consideration of the argument advanced by the learned counsel, and on perusal of the judgments of the courts below, it can be seen that apart Crl.R.P.No.1728 of 2010 : 5 : from the mere denial of execution and issuance of the cheque, no material or evidence produced by the accused/revision petitioner to substantiate her plea. It is relevant to refer the claim of the complainant. According to the complainant, the husband of the revision petitioner was one of the subscribers of chitty and towards the said transaction, the accused furnished the Ext.P2 cheque as the guarantor of the chitty transaction between her husband and the complainant. Towards the transaction of the allegation the complainant produced Ext.P2 cheque from their possession which contains the signature of the accused/revision petitioner. The trial court as well as the lower appellate court after considering the case of the complainant and oral evidence adduced by the complainant through PW1 and also consider the documents, came into the conclusion that the complainant has established its case and thereby the complainant is entitled to get presumption under Sec.139 of the N.I.Act. It is under the above factual Crl.R.P.No.1728 of 2010 : 6 : and legal background the court below considered the case of the defence. Admittedly, no evidence is adduced by the defence. When the complainant produced the cheque from his possession stating that the cheque in question is the one which entrusted with the complainant by the accused when she stood as a guarantor for the chitty transaction for her husband, it is for the accused to dispute the same effectively and to gave a proper account and explanation as to how the cheque in question reached in the hands of the complainant. Absolutely there is no explanation and no materials. The Apex Court has held time and again in order to discharge the burden of the accused in a prosecution for the offence under Sec.138 of the N.I.Act and rebut the presumption, the mere denial of the transaction, execution and issuance of the cheque is not sufficient. In this case it is relevant to note that even though the accused/revision petitioner has received the lawyer notice sent by the complainant, no reply is given whatsoever. The learned Crl.R.P.No.1728 of 2010 : 7 : counsel for the revision petitioner submitted that the revision petitioner had disputed the signature that contained in the Ext.P2 cheque. By producing the documentary evidence and also adducing oral evidence, the complainant has established that the cheque in question was dishonoured, not for the reason of difference in the signature of the account holder but for the reason that there was no sufficient fund in the account maintained by the accused. Hence the contention and dispute with respect to the signature is liable to be rejected. Considering the above facts and circumstances, I am of the view that the trial court is perfectly legal and correct in its finding that the complainant has established his case. The revision petitioner miserably failed to rebut the presumption. Hence, I am of the view that there is no merit in the revision petition and therefore, I confirm the conviction recorded by the courts below. 6. The learned counsel for the revision petitioner Crl.R.P.No.1728 of 2010 : 8 : submitted that some breathing time may be granted to the revision petitioner to pay the fine amount. According to me, the said submission can be considered favourably. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the trial court as well as the lower appellate court and also the sentence of fine and the default sentence. Accordingly the revision petitioner is directed to appear before the trial court on 8.9.2010 to receive the sentence and to make the payment. In case, any failure on the part of the revision petitioner in appearing before the court below, the trial court is free to take coercive steps to secure the presence of the revision petitioner. Revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt