IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 1156 of 2002() ------------------------------ CRA.118/2000 of V ADDL.SESSIONS COURT, ERNAKULAM CC.9/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER(S): RESPONDENT/COMPLAINANT ------------------------------------------- JAYAKUMAR V.K. S/O. KUTTAPPAN, AGED 34 YEARS, VETTATH HOUSE, KANJIRAMATTOM P.O., ERNAKULAM DISTRICT BY ADV. SRI.C.M.SURESH BABU SRI.V.K.NAVEENAN RESPONDENT(S): APPELLANT/ ACCUSED --------------------------------- 1. SASIKALA @ LATHA, AGED 34 YEARS, D/O. JANARDHANAN PILLAI, LATHA BHAVAN, KANJIRAMATTOM P.O., ERNAKULAM DISTRICT 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.P.JACOB FOR R1 SRI.P.GEORGE VARGHESE FOR R1 R2 BY PUBLIC PROSECUTOR SHRI.M.R. VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON 26/11/2010 PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO. 6125/02 IN CRL.R.P.NO. 1156 OF 2002 DISMISSED 26.11.2010 SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1156 of 2002 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2010 O R D E R This revision petition is filed by the complainant in C.C. No. 9 of 1998 on the file of the Judicial First Class Magistrate Court -I, Ernakulam. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. The case of the complainant is as follows. The accused issued a cheque for Rs.70,000/- dt.25.11.1997 drawn on the Amballoor Janatha Service Co-operative Bank Ltd., Kanjiramattom branch to the complainant towards the discharge of the loan availed by the accused. When it was sent for collection, it was dishonoured for the reason 'funds insufficient' vide memo dt.11.12.1997. Notice dt. 16.12.1997 was issued to Crl.R.P.No. 1156 of 2002 2 the accused informing her about the dishonour of the cheque and demanding the payment. The accused received the notice on 17.12.1997. Even after receipt of the Notice, she failed to pay the amount. Hence the complaint was filed. 3. In the Magistrate Court, on the side of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P5 were marked. On the side of the defence, Dws.1 and 2 were examined and Ext.D1 was marked. Ext.C1 was marked as court exhibit. The learned Magistrate, on considering the evidence, convicted the accused under Section 138 of the N.I. Act and she was sentenced to undergo S.I. for a period of six months and to pay a sum of Rs.70,000/- to the complainant as compensation. Against that conviction and sentence, the accused filed Crl.A.No. 118 of 2000 before the Vth Additional Sessions Court, Ernakulam, which was allowed and the conviction ad sentence was set aside and the case was remanded to the lower court for fresh disposal for taking further evidence regarding genuineness of Crl.R.P.No. 1156 of 2002 3 the signature contained in Ext.D1 and regarding the source of the complainant for raising the money alleged to have been lent to the accused. Against that judgment the complainant filed this Crl. R.P. 4. Heard learned counsel for the revision petitioner and the learned counsel for the first respondent. 5. The learned counsel for the revision petitioner submits that the lower appellate court failed to notice the fact that it was the specific case of the complainant that the accused herself had actually signed the cheque before him and the burden is on the accused to show that the said signature on the cheque is not put by her. The learned counsel for the revision petitioner submitted that the lower appellate court went wrong in attributing the entire burden on the complainant to prove the source of income and consideration, which is against the legal presumption under Sections 118 and 139 of the N.I. Act. The learned counsel further submitted that the lower appellate court failed to notice the fact that no reply was sent by the accused to the notice issued by the Crl.R.P.No. 1156 of 2002 4 complainant. The learned counsel for the first respondent supported the judgment of the lower appellate court to some extent. 6. When the complainant was examined as PW1, he deposed that the accused borrowed an amount of Rs.70,000/- from him and executed Ext.P1 cheque dt.25.11.1997 for that amount. When that cheque was sent for collection, it was dishonoured for the reason 'funds insufficient' in the account of the accused. Ext.P2 is the memorandum of dishonour dt.11.12.1997 and Ext.P3 is the copy of notice dt.16.12.1997. Ext.P4 is the postal receipt and Ext.P5 is the acknowledgment card showing that the accused received the notice on 17.12.1997. The complaint is filed on 6.1.1998. Hence it is clear that the complainant has filed complaint after complying with all the legal formalities. 7. Ext.C1 is the certified extract of the account of the accused, which shows that on 11.12.1997 when Ext.P1 cheque came up for collection there was only Rs.265/- outstanding in the said account. The accused has no case that there was sufficient funds in her account Crl.R.P.No. 1156 of 2002 5 when Ext.P1 cheque came up for collection. She has not cross examined PW1 on that point. Hence it is proved from Exts.P2 and Ext.C1 that Ext.P1 cheque was dishonoured for want of sufficient funds in the account of the accused. 8. When examined as DW1, the case of the accused is that she had not borrowed any amount from the complainant and she has not issued Ext. P1 cheque to the complainant and that Ext.P1 is a cheque lost from her, which was misused by the complainant. 9. DW2 is the Branch Manager of Amballoor Janatha Service Co-operative Bank, Kanjiramattom branch. He deposed that the accused has an account with his bank. Ext.C1 is the certified extract of the said account. He produced the specimen signature card of the accused, copy of which is Ext.D1. He deposed that the signature of the accused in the specimen signature card and that in Ext.P1 are entirely different. He got intimation from the accused that two cheque leaves belonging to her were lost. Intimation was given by her on 12.11.1998. Crl.R.P.No. 1156 of 2002 6 However, those two cheques have not come up for collection. No complaint is received from the accused regarding the loss of Ext.P1 cheque. 10. According to PW1, the accused signed Ext.P1 cheque in his presence. DW2 admitted that Ext.P1 cheque was issued from his bank. DW1 admitted that she lost only one cheque and she intimated the matter to the bank. She admitted that she received Ext.P3 notice regarding dishonour of the cheque, but she did not send any reply. If the case of the accused was true, the accused should have sent a reply explaining her case. DW2 deposed that the cheques alleged to have been lost by the accused have not come up for collection in that bank. Therefore, the version of DW1 that she lost Ext.P1 cheque and the same was intimated to the bank is false. 11. On appreciating the testimony of PW1 in the light of the defence evidence, the learned Magistrate is perfectly justified in finding that Ext.P1 cheque was issued by the accused. Since the execution of Crl.R.P.No. 1156 of 2002 7 Ext.P1 cheque is proved, the presumption under Sections 118 and 139 of the N.I. Act would apply and the burden is on the accused to rebut that presumption. The evidence adduced from the side of the accused is not sufficient to rebut that presumption. 12. The finding of the lower appellate court that in all probabilities a person having a balance of Rs.300/- in his credit will not issue a cheque for Rs.70,000/- to his creditor because such an act would expose him to penal consequences under Section 138 of the N.I. Act, is erroneous. It has come out in evidence that the complainant advanced Rs.70,000/- when the accused was accompanied by her father, who is well known to the complainant, on the assurance of returning the same on getting the grant for the S.S.I. unit. 13. The order of remand passed by the court below for further evidence regarding the genuineness of Ext.D1 and regarding the source of the complainant for raising the money lent to the accused is totally unwarranted, since the same is under the clutches of the presumption Crl.R.P.No. 1156 of 2002 8 under Sections 118 ad 139 of the N.I. Act. and the burden to rebut the same is on the accused by adducing evidence. Therefore the judgment of the appellate court remanding the case to the court below has to be set aside. 14. Since the complainant has proved all the ingredients of the offence punishable under Section 138 of the N.I. Act, the learned Magistrate is fully justified in convicting the accused under Section 138 of the N.I. Act and the same is confirmed. 15. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.70,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The revision petitioner is permitted Crl.R.P.No. 1156 of 2002 9 either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within six months from today and produce a memo to that effect before the trial Court, in case of direct payment. If she fails to deposit or pay the said amount within the aforesaid period, she shall suffer simple imprisonment for three months by way of default sentence. 16. In the result, this Revision Petition is allowed. The judgment in Crl.A.No. 118 of 2000 on the file of the Vth Additiona; Sessions Court, Ernakulam remanding the case to the court below is set aside and the conviction of the accused in C.C. 9 of 1998 on the file of the Judicial First Class Magistrate Court -I, Ernakulam under Section 138 of the N.I. Act is confirmed and the sentence is modified as above. (M.L. JOSEPH FRANCIS) Judge tm Crl.R.P.No. 1156 of 2002 10 The words “The revision petitioner” occurring in the last line at page 8 (paragraph 15) of the final order dated 26.11.2010 in Crl.R.P. 1156/2002 are corrected and substituted as “The first respondent” as per order dated 15.3.2011 in Crl.M.A.No. 1777/2011 in Crl.R.P. 1156/2002. Sd/- Registrar (Judicial)