IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Crl.Rev.Pet.No. 2865 of 2005() ------------------------------ C.A..629/2004 of ADDL. SESSIONS COURT, ALAPPUZHA CC.359/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ VIRONI JOSEPH, PROPRIETRIEX, DINU EXPORTS INDUSTRIES, VELIMPARAMBILE, WARD NO.14, MARARIKULAM SOUTH PANCHAYATH, PATHIRAPPALLI P.O., ALAPPUZHA. BY ADV. SRI.JOHN JUDE ISSAC RESPONDENTS: RESPONDENTS - COMPLAINANT: --------------------------------------- 1. N.N. SUKUMARAN, KANNAKATTU HOUSE, VAYALAR EAST VILLAGE, VAYALAR P.O., CHERTHALA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) FOR R1 SRI. THOMAS JOHN AMBOOKEN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL. R.P. No. 2865/05 ORDER ON CRL.M.A. No. 18356/05 IN CRL.R.P. No. 2865/05 DISMISSED 19.9.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- Crl. R.P. No. 2865 OF 2005 --------------------- Dated this the 19th day of September, 2008 ORDER This Criminal Revision Petition is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Alappuzha, in Crl. Appeal No.629/04. The said appeal was preferred against the judgment in C.C. No.359/01 of the JFCM-I, Cherthala, whereby the accused was sentenced to undergo imprisonment for a period of one month and to pay a compensation of Rs.50,000/- and in default to undergo imprisonment for 15 days. 2. Learned counsel for the revision petitioner strongly contends before me that the materials available before the court is not at all sufficient to enter into a conviction against the accused. The case of the complainant is that the accused has issued the cheque Ext.P1 and which when presented for encashment returned with an endorsement “insufficiency of funds”. In spite of statutory notice issued, no payment was made and that had resulted in launching of the criminal prosecution. 3. On the other hand, the accused would contend that she had no acquaintance at all with the complainant and her son had Crl.R.P. No.2865/05 2 removed one of her cheque leaves and might have signed and handed over the same to the complainant and therefore there is no execution of a cheque by the accused in favour of the complainant. In the court below PW1 was examined and Exhibits P1 to P6 were marked. Learned counsel had cited before me the decision reported in Abdul Gafoor v. Abdurahiman [1999 (2) KLT 634] whereby this court held that it is not necessary to file an application before the court for sending the disputed cheque for comparison by expert. Comparison by an expert is dealt with under section 73 of the Indian Evidence Act. It is not a universal principle that whenever the signature is disputed, the matter has to be referred to a finger print expert. It has been held by the Apex Court as well as this court that when sufficient materials are available before the court and when a comparison of the signature can be done, it can be used as a method to find out the truth. The caution is that no court shall enter into an ultimate finding merely on the basis of the comparison of signature. Suppose there are sufficient acceptable evidence tendered in a case coupled with comparison of signature, then there is no mistake in arriving at a decision. In the cases involved under section 138 of the Negotiable Instruments Act if every cheque is sent Crl.R.P. No.2865/05 3 for comparison of signature then the very statutory purpose behind section 138 of the NI Act will be defeated. But it does not mean that when there is a real need it need not be sent. 4. Now the first question to be considered in this case is that whether there is any real need to send the disputed cheque for comparison of signature. PW1 has sworn to the factum of the handing over of the cheque to him. The court below had also compared the signatures and both the courts were satisfied about the genuineness of the signature contained in Ext.P1 cheque. DW1, the accused, was examined. It is her definite case that it was her son who had taken the cheque from her and handed it over to the complainant. But he is not examined. It is true that in the light of section 315 of the criminal procedure code there cannot be such a duty cast upon the accused to examine a particular witness. This court also held that in a case of this nature the rival contentions of the accused as well as the complainant has to be taken into consideration and the evidence has to be appreciated. It is the case of the accused that her son stealthily removed a cheque leaf of the mother and handed it over to another person. So an analysis of the materials, as correctly done by the court below, will lead to the Crl.R.P. No.2865/05 4 irresistible conclusion that she herself had executed the cheque. The factum of dishonour and statutory compliance under the provisions of the NI Act are proved and therefore, I do not find any illegality or irregularity committed by the courts below in arriving at conviction. 5. The last question to be considered is with regard to the quantum of sentence. The trial court had imposed a punishment of one month's imprisonment with a compensation of Rs.50,000, I feel interest of justice can be met by altering the sentence and making the sentence of imprisonment till the rising of the court and to pay a fine of Rs.50,000/-, which on payment can be disbursed to the complainant. If the accused commits default in making payment of fine, she shall undergo imprisonment for a period of one month. The revision petitioner is directed to surrender before the court below for receiving the sentence and for payment of fine on 19.11.08. The criminal revision petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps Crl.R.P. No.2865/05 5 M.N.KRISHNAN, JUDGE vps Crl.R.P. No.2865/05 6