IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 Crl.Rev.Pet.No. 1304 of 2006() ------------------------------ CRA.153/2005 of ADDL.SESSIONS COURT, KOZHIKODE CC.518/2003 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- ARAVINDAKSHAN, S/O. APPU, MADATHIL HOUSE, P.O. KAKKODI, CALICUT. BY ADV. SRI.R.SUDHISH SRI.L.S.BHAGAVAL DAS RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. RAJEEVAN V., S/O. RARICHANKUTTY, VALLIYARATH HOUSE, P.O. KANNANKARA, CHELANNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.K.SREEJITH FOR R1 PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.3.2009, THE COURT ON 18/03/2009 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------------- CRL.R.P.No.1304 of 2006 ----------------------------------------- Dated this the 18th March, 2009 O R D E R The accused, who was convicted for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') has filed this revision against the concurrent verdict of guilt rendered against him by both the courts below. The trial court convicted him for the offence sentencing him to undergo simple imprisonment for 6 months and to pay Rs.45,000/- as compensation to the complainant under Section 357(3) Cr.P.C. The appellate court upholding the conviction, modified the sentence directing him to undergo imprisonment till the rising of the court and pay Rs.45,000/- as compensation and in default to undergo simple imprisonment for three months. Questioning the legality, propriety and correctness of the conviction and sentence as referred to above, the accused has come up with this revision. 2. At the outset, it has to be pointed out that the exercise of revisional jurisdiction is limited and reappraisal of evidence is permissible only in a case where it is evident that the finding Crl.R.P.1304/06 2 entered is so perverse which could not have been formed on the materials available in the case. Irregularity in the proceedings of the inferior court causing failure of justice may demand exercise of revisional authority. However, interference with the concurrent findings passed by the two courts below without justifiable ground is impermissible in revision. 3. The learned Magistrate, who had the opportunity to watch the demeanour and deportment of the witnesses at the time of examination, found the testimony of the complainant reliable and trustworthy and that of the evidence adduced by the defence, examined as DW1, as unreliable. The appellate court after re-appreciation of the evidence approved the finding on those aspects entered by the learned Magistrate. Learned counsel for the accused wanted me to examine the disputed facts involved in the case based on the defence of the accused, that there was denial of execution of the cheque and also that the accused had no transaction with the complainant. I am afraid, within the narrow scope confined by the revisional Crl.R.P.1304/06 3 jurisdiction an enquiry on those aspects cannot be resorted to unless it is shown that the findings entered by both inferior courts are perverse. After perusing the materials of the case, I am not persuaded to accept the argument of the learned counsel that the defence canvassed by the accused as to denial of execution of the cheque that a blank signed cheque kept in his shop was taken and fraudulently misused by the complainant, cast a burden on the complainant to prove the transaction with material particulars and also there was due execution of the cheque and passing of consideration. Having regard to the statutory presumptions available in favour of the complainant, I am of view that by advancing a defence alone, there cannot be any wiping off the presumptions, which will continue to have force and applicability. The accused, who has denied the execution contending that a blank signed cheque had been stolen, must first of all satisfy the conscience of the court that the defence set up is probable. True, the burden cast to prove the defence is much less than that of the prosecution to prove its case. Preponderance of probabilities Crl.R.P.1304/06 4 justifying the defence, and its truthfulness, has to be presented before the court. As rightly pointed out by both the courts below, I do not find any merit in the defence advanced by the accused. 4. The maintainability of the complaint filed was imputed by the learned counsel for accused contending that initially the complaint was referred to the police under Section 156(3) Cr.P.C for investigation and report. The complaint was styled as one involving an offence under Section 420 IPC alone, submits the learned counsel. After investigation, the police filed a report that the case was one of mistaken fact. A protest complaint was filed by the complainant and after enquiry, cognizance was taken by the court, as seen from the records, for an offence under Section 417 IPC. Subsequently, during the course of the trial, it is seen that on the application moved by the complainant, the charge was altered to one under Section 138 of the Act. No cognizance could have been taken on the protest complaint as it was barred under law is the objection raised by the learned counsel. The learned counsel Crl.R.P.1304/06 5 relied on Parameswaran Nair v. Surendran and Another (2009(1) KHC 801) to contend that if at all the court took cognizance, then such cognizance ought to have been taken on the original complaint filed by the complainant, which was initially referred to the police for investigation. In appreciating the objection raised by the learned counsel, first of all it has to be noticed that no court by its acts shall cause injury to any of the parties to the proceedings, who approach the court for justice. The court is an institution existing for dispensation of justice. So, if at all there was any irregularity, on the part of the court, in taking cognizance on the protest complaint, after a refer report was filed that irregularity cannot be viewed in isolation, but in the backdrop of the totality of the circumstances in the case and also taking note that the mistake shall not cause failure of justice to any of the parties. Perusing the complaint initially filed by the complainant, I find that necessary ingredients for the offence under Sections 420 IPC and 138 of N.I Act have been specifically alleged and, in fact, the complainant has averred in paragraph 6 of the first Crl.R.P.1304/06 6 complaint that the accused has committed an offence punishable under Section 138 of the Act. Cognizance taken on the protest complaint and subsequent altering of the charge has to be viewed in the backdrop of the specific allegations raised by the complainant in his complaint. The Sessions Judge has considered the objection raised on this point and has expressed the view that the court could have taken cognizance based on the first complaint itself. The Sessions Judge observing that the second complaint filed by the first respondent is only a reminder to the court about the necessity to take cognizance in respect of the offence under Section 138 of the Act has concluded that such cognizance taken by the Magistrate is perfectly justified. According to the leaned counsel for the accused, the altering of the charge to one under Section 138 of the Act, after taking cognizance of the offence under Section 417 IPC, is fatal in the sense that the cognizance of offence under Section 138 of the Act at the time when the alteration was made is barred by limitation. There is no challenge that the statutory formalities have been complied Crl.R.P.1304/06 7 with for taking cognizance for an offence under Section 138 of the Act in the present case. At the most, there was a mistake on the part of the court in not taking cognizance of the offence under Section 138 of the Act on the first complaint. The complainant had filed the complaint within the statutory period provided for taking cognizance of such an offence. So, in any view of the matter, I find that the challenge raised that the cognizance taken of the offence under Section 138 of the Act during the course of a trial after altering the charge is illegal, cannot be accepted. I do not find any illegality or irregularity in such cognizance taken by the court. 5. The revision is found to be devoid of any merit and is dismissed. 6. A complaint filed in 2001 has waited so long for its logical conclusion. I notice that the appellate court in modifying the sentence has not fixed the time limit, within which the compensation ordered has to be paid by the accused though a default clause is included for safeguarding its realisation. In the interest of justice, fixing a time limit for Crl.R.P.1304/06 8 payment of compensation is necessary. The revision petitioner/accused shall pay the compensation, as ordered by the appellate court, within two months from the date of this order. The accused shall report and his sureties shall produce him before the Magistrate Court-III, Kozhikode on 1.6.2009, and the learned Magistrate shall execute the sentence as directed. S.S.SATHEESACHANDRAN, JUDGE vgs.