IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Crl.Rev.Pet.No. 3437 of 2009() ------------------------------------------ CRA.138/2008 of SESSIONS COURT, PATHANAMTHITTA CC.615/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ------------------------------------------------------------------- T.SAMUEL, MUKALATHUVILAYIL HOUSE NELLIMUKAL PO, MANAKALA, ADOOR. BY ADV. SRI.D.KISHORE RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ----------------------------------------------------------------------------------- 1. ELSYKUTTY PHILIP, PLEASANT VILLA CHERRIKARATHU, NEDUMON PO EZHAMKULAM, ADOOR. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2011, ALONG WITH CRMC NO. 171 OF 2010 CRRP NO. 3595 OF 2009 THE COURT ON 24/10/2011 PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.3437 OF 2009 Crl.R.P.NO.3595 OF 2009 & Crl.M.C.NO.171 OF 2010 ----------------------------------- Dated this the 24th day of October, 2011 O R D E R The accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently by the two courts below has filed Crl.R.P.No.3437 of 2009 and also Crl.M.C.No.171 of 2010. 2. Complainant in the cheque case questioning the sentence imposed on the accused as inadequate, has filed the other revision, Crl.R.P.No.3595 of 2009. 3. Crl.M.C.No.171 of 2010 filed by the accused is directed against modification of the sentence by the learned Sessions Judge enhancing the quantum of compensation to Rs.7,50,000/- from Rs.50,000/- awarded by the learned Magistrate, upholding Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 2 Crl.M.C.NO.171/2010 the challenge raised thereto by the complainant filing a revision Crl.R.P.No.20 of 2008, which was heard and disposed along with the appeal, Crl.A.No.138 of 2008, challenging his conviction by the learned Magistrate. The accused, no doubt, could have challenged the propriety, legality and correctness of the enhancement of the sentence in his revision, Crl.R.P.No.3437 of 2009. Since the learned Sessions Judge had disposed of his appeal with that of the revision of the complainant as aforesaid under a common judgment, no separate M.C. as such was required at the instance of the accused to challenge the enhancement of compensation awarded as indicated above by the learned Sessions Judge. 4. Complainant has filed a revision Crl.R.P.No.3595 of 2009 dissatisfied with the punishment of imprisonment till rising of the court and compensation awarded by the learned Sessions Judge while confirming the conviction against the accused. Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 3 Crl.M.C.NO.171/2010 Substantive term of imprisonment as part of the sentence is warranted against the accused as he has dragged on the proceedings for several years is the case of the complainant to sustain the revision. She had questioned the inadequacy of the sentence awarded by the learned Magistrate filing a revision Crl.R.P.No.20 of 2008 before the learned Sessions Judge and that was disposed of with the appeal of the accused confirming the conviction and enhancing the quantum of compensation. In view of the interdiction under sub section (3) of Section 399 of the Code of Criminal Procedure, no further proceedings by way of revision at the instance of the complainant is entertainable, and as such, Crl.R.P.No.3595 of 2009 filed by the complainant is only to be dismissed, and I do so. 5. The case of the complainant is that towards discharge of a loan of Rs.6,50,000/- availed from her, the accused, three years Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 4 Crl.M.C.NO.171/2010 later, issued Ext.P1 cheque for Rs.7 lakhs. That cheque, on presentation, was dishonoured due to insufficiency of funds in the account maintained by the accused. Statutory notice issued intimating dishonour not being responded with reply or payment, she filed the complaint to prosecute him for the offence under Section 138 of the N.I.Act. The accused, resisting the prosecution, set up a plea of discharge producing a receipt (Ext.D3) contending that after the dishonour of the cheque but before the issue of the notice, he had discharged the liability by payment. The liability then outstanding and discharged by payment was only Rs.6,50,000/-, after periodical payment of interest over the loan transaction, which, according to him, had been obtained issuing a blank signed cheque. The genuineness of Ext.D3 receipt being disputed by the complainant, it was sent over to the Forensic Science Laboratory with the admitted writings and signatures collected from the complainant. Complainant had also moved for determination of the age of the Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 5 Crl.M.C.NO.171/2010 typewritings and signatures in the document. The scientific expert, after examining the documents, had sent Ext.D7 report stating that the writings in ink and signatures tallied with that of the admitted writings and signatures of the complainant. He, therefore, opined that the questioned writings and signature in the document were by the complainant. So far as the queries raised by the complainant for determination of the age of typed writings, signatures etc. in the document, the expert opined that no scientific technique is available for answering them. 6. The evidence in the case consisted of PW1 and Exts.P1 to P9 for the complainant and DW1 and Exts.D1 to D7 for the accused. DW1 is the son of the accused, who claimed of having direct knowledge over the loan transaction with the complainant and also issue of Ext.D3 receipt by the complainant. The accused had also answered the 313 questioning based on the materials tendered by the complainant, through his counsel, Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 6 Crl.M.C.NO.171/2010 after getting permission of the court to do so on account of his indisposition. The learned Magistrate, on the materials placed, found the accused guilty of the offence under Section 138 of the N.I.Act holding that Ext.P1 cheque was issued by him towards discharge of a legally enforceable debt, it was dishonoured due to insufficiency of funds and that the entire liability on that instrument was not discharged. Ext.D3 receipt was accepted as genuine, relying on Ext.D7 report of the scientific expert of the Forensic Science Laboratory. As the amount covered by the cheque was Rs.7 lakhs part payment made under Ext.D3, sum of Rs.6.5 lakhs, would not absolve the accused of the offence imputed, was the view taken by the Magistrate. Convicting the accused he was sentenced to undergo simple imprisonment for one year and to pay compensation of Rs.50,000/-, with default term of simple imprisonment for one month more. 7. The accused impeached his conviction and sentence Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 7 Crl.M.C.NO.171/2010 filing an appeal, and the complainant questioned the sentence awarded as inadequate, filing a revision, as indicated. The learned Sessions Judge, after reappraisal of the evidence, came to the conclusion that the plea of discharge based on Ext.D3 receipt by the accused is false and that receipt produced was a product of forgery. Conviction entered against the accused was found established by the materials in the case, and it was confirmed by the learned Sessions Judge dismissing the appeal. Sentence imposed against the accused was modified reducing the imprisonment of one year to imprisonment till rising of the court, but, enhancing the compensation payable to the complainant to Rs.7,50,000/- with default term of simple imprisonment for three months. Revision and appeal were allowed in part by the learned Sessions Judge as indicated above. 8. As against the conviction concurrently rendered with the modification of the sentence as stated above, by the learned Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 8 Crl.M.C.NO.171/2010 Sessions Judge, the accused has preferred the revision. The learned counsel for the accused assailed the finding of the learned Sessions Judge over Ext.D3 receipt as patently erroneous and unsustainable under law and fact. Circumstances relied by the learned Sessions Judge to express the view that Ext.D3 was probably a forged and manipulated document, according to the counsel, are totally bereft of any probative value especially where the unimpeachable scientific opinion given by the expert under Ext.D7 report demonstrated in unequivocal terms that the writings and signatures in Ext.D3 receipt were made by none other than by the complainant. Reliance was placed by the counsel on State v. Ammini and Others (1987 (1) KLT 928 (FB)), Sonam Tshering Bhutia v. State of Sikkim (2004 KHC 2695) and Geetha v. State of Kerala (2005 (2) KLT 407) to contend that Ext.D7 report given by the Assistant Director of the Forensic Scientific Laboratory without examining the expert constitute legal evidence since the Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 9 Crl.M.C.NO.171/2010 reception and evidence of the report without such examination is provided under Section 293 (4) of the Code. Challenge to the report, if any, by examining the expert must come from the complainant when the opinion expressed thereto was adverse to her, and, since no such examination was made, the opinion given by the expert is conclusive and final, according to the counsel. Plea of discharge canvassed by the accused that after dishonour of the cheque, he paid a sum of Rs.6,50,000/- is amply proved by Ext.D3 receipt, which has been proved to be genuine as duly signed by the complainant, knocks down the bottom of the complainant's case, submits the counsel. Relying on Narayana Menon v. State of Kerala (2006 (3) KLT 404 (SC)), the learned counsel submitted that the accused need not disprove the prosecution case but only show that the defence canvassed by him is probable satisfying the test of preponderance of probabilities. In the proved facts of the case, where Ext.D3 receipt produced by him has been shown to be signed by the Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 10 Crl.M.C.NO.171/2010 complainant, negativing her denial, the plea of discharge raised by the accused, which, in fact, was accepted by the learned Magistrate also, should have led to his acquittal, but, both the courts on wrong conclusion rendered a conviction against him, is the submission of the counsel. Where Ext.D3 receipt showed that the plea of discharge canvassed by the accused is probable and acceptable it also indicated that if not the whole but substantial portion of the cheque amount had already been paid to the complainant before filing of the complaint, according to the counsel. Where the whole amount of debt or liability was lesser than the amount presented by the cheque, according to the counsel, prosecution for the offence under Section 138 of the N.I.Act would not lie against the drawer of the cheque as it would not constitute an offence under Section 138 of the N.I.Act. Reliance is placed on Joseph Sartho v. Gopinathan Nair (2008 (4) KLT 509) to contend that if the liability covered by the cheque was less than what is reflected in the instrument, the Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 11 Crl.M.C.NO.171/2010 prosecution must fail. In the aforesaid circumstances, conviction of the accused is liable to be set aside and he has to be acquitted of the offence under Section 138 of the N.I.Act, is the submission of the counsel. 9. Per contra, the learned counsel appearing for the complainant adverting to the circumstances involved, and taken note of by the learned Sessions Judge, which are reflected in his judgment, submitted that conviction of the accused is founded on unimpeachable legal evidence tendered in the case, establishing the truthfulness of the case of the complainant and the falsity of the defence, plea of discharge based on Ext.D3 receipt canvassed by the accused. The accused did not even send a reply to the notice issued on dishonour of the cheque after acknowledging its receipt is pointed out by the counsel to contend that the belated defence set up producing a manipulated document Ext.D3 receipt was rightly and correctly repelled by Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 12 Crl.M.C.NO.171/2010 the learned Sessions Judge. Conviction of the accused does not suffer from any infirmity whatsoever is the submission of the counsel submitting that the challenges raised thereto by the accused are unworthy of any merit and they are liable to be turned down. 10. The accused, admittedly, had availed a loan from the complainant and her husband, to the tune of Rs.7,50,000/- in 1999 promising to repay the sum with interest. Ext.P9 receipt evidences of an undertaking by him to pay the amount with 12% interest per annum agreeing to have a charge for such debt over his assets. He was regularly paying the interest, and whatever amount outstanding on the loan was paid under Ext.D3 receipt after dishonour of the cheque, was his defence. 11. Ext.P1 cheque, according to the complainant, was given towards discharge of the liability under the loan on Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 13 Crl.M.C.NO.171/2010 3.6.2003 and it was presented for encashment before the bank on 7.6.2003. The dishonour of that instrument was received through her bank by the complainant on 19.6.2003. A statutory notice intimating dishonour and demanding the sum covered by the instrument was issued on 26.6.2003; and, that notice after receipt remaining not responded to with any reply or payment complaint was filed on 17.7.2003. 12. According to the accused, after presentation of the cheque and its dishonour on 12.6.2003, he met the complianant, paid the sum of Rs.6,50,000/-, the liability due under the loan transaction and obtained Ext.D3 receipt from her. He had a telephonic conversation with the complainant after presentation of the cheque before the bank, and thereupon, the payment as aforesaid was made, is his version. He also contended that the complainant stated that the cheque was with her counsel at Ernakulam and hence it was not returned to him. Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 14 Crl.M.C.NO.171/2010 13. The defence canvassed by the accused, no doubt, is a plea of discharge. When a plea of discharge is set up in answer to the prosecution for the offence under Section 138 of the N.I.Act, the burden is on the accused to show that there has been discharge of the debt or liability under the instrument. The cheque was issued towards discharge of a legally enforceable debt or liability, which is a primary ingredient to constitute the offence to enable the complainant to file the prosecution, on dishonour of such a cheque, on presentation, is practically admitted or conceded to by the plea taken by the accused. The cheque was dishonoured due to insufficiency of funds in the account maintained by the accused is also not a question of dispute in the case. So, the limited question is whether the accused has shown that his plea of discharge based on Ext.D3 receipt is probable and acceptable. As rightly contended by the learned counsel for the accused, he need only show that the Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 15 Crl.M.C.NO.171/2010 defence set up by him, plea of discharge, satisfy the test of preponderance of probabilities on the facts and circumstances presented in the case. Even without letting in any evidence on his side, no doubt, the accused can rely on the materials tendered by the complainant to point out the circumstances which would render the defence projected by him probable. Has the accused succeeded on the facts and circumstances presented in the case in showing the probability of his defence is the limited question that arises for consideration. 14. The accused has not mounted the box to swear in support of his case. Producing a medical certificate stating that he required three weeks' bed rest on account of his illness, he answered 313 questioning through his counsel. Even when cross examining the complainant, examined as PW1, or while being questioned under Section 313 of the Code through his counsel, he has no case that his son, examined as DW1, was Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 16 Crl.M.C.NO.171/2010 present when the discharge of the liability was made, after the presentation of Ext.P1 cheque by the complainant before the bank, by payment of Rs.6,50,000/- and Ext.D3 receipt was obtained from the complainant on 13.6.2003. His son (DW1) is a nursing student studying in Bangalore. He claimed that he was present even when the loan was availed by his father and also later when the liability was discharged by payment obtaining Ext.D3 receipt. The evidence let in through him would indicate that not only a cheque, which was stated to have been obtained in blank form with signature alone, but also the title deed of the accused was furnished as security for the loan, and both such instruments were not collected from the complainant after the alleged discharge and obtaining of Ext.D3 receipt. No written demand was ever made to the complainant to return the cheque and the title deed is also borne out by his evidence. The above circumstance has to be taken into account with reference to the explanation offered as to why statutory notice issued intimating Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 17 Crl.M.C.NO.171/2010 dishonour was not responded to with a reply stating that before receiving such notice the liability had been discharged. Complainant had presented the cheque through her bank on 07.06.2003, and she got intimation of the dishonour of that instrument only on 19.6.2003. If at all there was any discharge by payment, it would only be reasonable to presume that over and above acknowledging the receipt of payment an unconditional undertaking to return whatever documents given as security including the cheque would have been demanded and collected from the complainant especially where the cheque had already been presented before the bank with the accused having knowledge of such presentation as well. Writings over the stamp affixed in Ext.D3 receipt and also signature subscribed thereunder are proved to be that of the complainant, that alone, would not render the defence canvassed by the accused as probable. The learned Sessions Judge has correctly taken note that the Ext.D3 receipt is typed on a small piece of paper. Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 18 Crl.M.C.NO.171/2010 Complainant had admitted that a sum of Rs.50,000/- was paid after the presentation of the cheque and she had issued a receipt for that sum also. She had asserted that the receipt was written with ball point pen. After production of Ext.D3 in the case, she had even filed a complaint before the police against the accused and another alleging that it has been forged and fabricated. A refer report was filed after investigation in her complaint, since expert's opinion issued after scrutiny of the document was that it contained her writings and signature, does not rule out the falsification in the making of such receipt. Though the complainant has not specifically set up such a case, looking into Ext.D3 receipt, one cannot rule out the possibility that the receipt issued by her in relation to the acknowledgment of collecting Rs.50,000/- might have been forged to make out a case of discharging the entire liability. One cannot rule out the possibility of tampering the receipt issued by her receiving the part payment of Rs.50,000/- in the making of Ext.D3 receipt by Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 19 Crl.M.C.NO.171/2010 falsification. The bottom portion of the receipt containing her signature affixed over the stamp with the writings thereto, perhaps with some blank space available over and above the signature portion in the paper might have been cleanly cut, and in such blank space entries made with typewritings might have been made to fabricate Ext.D3 receipt. A look into Ext.D3 receipt with the typewritten entries made in such small piece of paper, the measurement of which are given by the learned Sessions Judge in his judgment, arouses strong suspicion as indicated above casting serious doubts over its genuineness. It is totally unsafe to place any reliance on such a document even when the expert has given an opinion that the signature and writings over the stamp therein tally with that of the complainant. Ext.D7 report of the expert has been admitted in evidence and the examination of the expert is not necessary to receive it as legal evidence is not at all sufficient to conclude that it is a genuine instrument. That question necessarily has to Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 20 Crl.M.C.NO.171/2010 be looked into with reference to the totality of the proved facts and circumstances in the case. So much so, the decisions relied by the counsel do not assist the accused in any manner that the plea of discharge canvassed by him based on Ext.D3 receipt is probable and acceptable. The fact that no reply was sent to the statutory notice when the complainant was examined as PW1, that not even any suggestion was made to PW1 as to the presence of his son when the alleged payment of money and obtaining of Ext.D3 receipt, that no demand was made to get back the title deed, which too is stated to have been furnished as security for the loan availed, that the accused remained aloof from the court and was not prepared to give evidence, even if he had been indisposed earlier, providing an opportunity to the complainant to test the veracity of his plea of discharge, and, that Ext.D3 receipt, on a mere look of it arouse suspicion as to its manipulation or fabrication, are eloquent circumstances showing that the plea of discharge canvassed by the accused was a false Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 21 Crl.M.C.NO.171/2010 defence unworthy of any merit, and, it was rightly and correctly negatived by the learned Sessions Judge. When Ext.D3 receipt has been found to be unworthy of any value, the learned Sessions Judge was fully justified in the proved facts and circumstances of the case to differ from the conclusion of the learned Magistrate as to the discharge of the sum covered by that receipt in the cheque amount. 15. Reliance placed on Joseph Sartho's case (cited supra) by the learned counsel for the accused is totally misplaced. Ext.D3 receipt has been found to be unacceptable. Even according to the accused, the alleged discharge was only after the presentation of the cheque by the payee before the bank and it was not a case of any payment by the maker before such presentation. The proposition laid down in that decision that the liability covered by the instrument should remain as such when it was dishonoured to constitute an offence under Section 138 of Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 22 Crl.M.C.NO.171/2010 the N.I.Act and if a portion of the amount covered by the cheque was paid before the presentation of the instrument for encashment then the dishonour of that instrument would not constitute an offence under Section 138 of the N.I.Act, in any view of the matter, has no application to the case. Conviction of the accused concurrently rendered by the two courts below for the offence under Section 138 of the N.I.Act is fully supported by the proved facts and circumstances involved in the case and it is unassailable. 16. Sentence imposed against the accused as modified by the learned Sessions Judge is imprisonment for a day directing payment of compensation of Rs.7,50,000/- with default term of simple imprisonment for three months. Complainant has not stated in her complaint the receipt of Rs.50,000/-, after presentation of the cheque for encashment, from the accused. No explanation has also been offered why it was withheld from Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 23 Crl.M.C.NO.171/2010 the court. When Ext.D3 receipt was produced impeaching its genuineness complainant has admitted receiving of part payment of Rs.50,000/-. That circumstance being taken into account with reference to the delay in culmination of the prosecution also, I find, compensation awarded has to be limited to Rs.7,00,000/-. Sentence of imprisonment till rising of the court is affirmed with direction to pay compensation of Rs.7,00,000/- with default term of simple imprisonment for three months. 17. The accused is directed to appear before the learned Magistrate on 22.11.2011 to serve out the imprisonment till the rising of the court, and to report payment of the compensation as modified above. The learned Magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance. In default of his appearance and non-payment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 24 Crl.M.C.NO.171/2010 With the above directions, both the revisions are disposed of. Crl.M.C. shall stand dismissed. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.NO.3437/2009 Crl.R.P.NO.3595/2009 & 25 Crl.M.C.NO.171/2010