IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 918 of 2001() ----------------------------- CRA.232/1995 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.39/1993 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... REVN. PETITIONER: APPELLANT/ACCUSED --------------------- D.MURALI, S/O.DAMODARAN, VAMADEVA METAL STORES, VENJARAMOODU FROM KOTTARAKONATHU VEEDU, VENJARAMOODU, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE --------------- 1. J.VIJAYAKUMAR, STAR ELECTRONICS, VENJARAMOODU. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.918 of 2001 ------------------------------------- Dated this the 1st day of July, 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty and conviction in a prosecution under Section 138 of the Negotiable Instruments Act. The appellate court had indulgently modified the sentence into one of imprisonment till rising of court and to pay an amount of Rs.20,000/- as compensation and in default to undergo S.I for a period of 3 months. 2. The cheque is for an amount of Rs.15,000/-. The signature in the cheque is admitted. That the signed cheque was handed over by the accused to the complainant is also admitted. But it is contended that the cheque was not handed over for the due discharge of any legally enforcible debt/liability. The same was handed over only as a blank signed cheque and as security when the parties entered into Ext.D1 agreement. This in short was the contention raised. 3. According to the complainant, the cheque was dishonoured on the ground of insufficiency of funds. There is no Crl.R.P No.918 of 2001 2 serious dispute on that aspect of the matter also. According to the complainant he had caused a notice of demand to be issued satisfying the requirements of Section 138 of the Negotiable Instruments Act. It was duly received and acknowledged. There was no response to the notice. It is, in these circumstances, that the complainant came to court after scrupulously observing the statutory time table under Section 138 of the Negotiable Instruments Act. The complainant examined himself as PW1 and a witness to the transaction as PW3. The bank manager was examined as PW2. Exts.A1 to A4 were marked. 4. The accused in the course of cross examination of the prosecution witnesses and 313 examination took up a stand that the cheque was not issued for the due discharge of any legally enforcible debt/liability. He took up a further contention that no valid notice of demand had been issued under Section 138 of the Negotiable Instruments Act. He examined himself as DW1 and two witnesses as DWs 2 and 3. His attempt was to substantiate his contention that the cheque was issued not for the due discharge of any legally enforcible debt/liability, but was only handed over as a signed blank cheque as security when Ext.D1 agreement was entered into. Crl.R.P No.918 of 2001 3 5. The courts below did not accept the defence set up by the accused and came to the conclusion that all ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act have been established. Accordingly they proceeded to pass the impugned concurrent judgments. As stated earlier the appellate court has indulgently modified the sentence imposed. 6. The respondent though served is not present before me to argue the revision. The learned counsel for the revision petitioner has advanced detailed arguments. The learned counsel for the revision petitioner assails the impugned order on two specific grounds. (i) The court below ought to have held that the cheque was not issued for the due discharge of any legally enforcible debt/liability; (ii) The courts below ought to have found that there is no proof of issue of a valid notice of demand in accordance with law prior to the launching of the prosecution. Ground No.1 7. As stated earlier, the signature in the cheque is admitted. That the cheque is drawn on a cheque leaf issued to Crl.R.P No.918 of 2001 4 the petitioner by his bank to operate his account is also not disputed. That the signed cheque was handed over to the complainant is also conceded. The short question is whether the cheque is issued for the due discharge of a legally enforcible debt/liability. The complainant contends that the post dated cheque was issued for the due repayment of the amount of loan availed on such future date. The cheque was handed over on the date of the loan transaction itself, according to the complainant. The complainant relies on the oral evidence of himself (PW1) and PW3 as also the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. 8. It is by now trite that mere admission of signature does not tantamount to admission of execution of cheque. It is also trite that the train of presumption under Sections 118 and 139 comes to the assistance of the complainant only when due execution and handing over of the cheque is proved. There is a long distance between mere admission of signature in a cheque and admission of execution of a cheque. That distance definitely has to be traversed by the complainant by tendering acceptable evidence. It is unnecessary to advert to precedents on this aspect. But I must alertly note that admission of signature does go a long way in the attempt to prove execution of the cheque. Crl.R.P No.918 of 2001 5 We have primarily the oral evidence of the complainant about the circumstances under which the cheque travelled from the possession of the accused to the possession of the complainant. As noted earlier, admittedly the cheque is drawn on a cheque leaf issued to the petitioner by his bank to operate his account. Admittedly it bears the signature of the accused. Admittedly it was handed over to the complainant by the accused. In these circumstances the oral evidence of the complainant who is able to produce such a cheque before court certainly commands respect. We have also the evidence of PW3 about the execution and handing over of the cheque by the accused to the complainant. 9. Less said about Ext.D1 and the oral evidence of DWs 1 to 3, the better. Ext.D1 does not intrinsically afford any indication to suggest that Ext.P1 cheque was handed over as a signed blank cheque and as security when Ext.D1 was executed. More over a reading of Ext.D1 shows that it was not executed by the complainant at all. It is a unilateral document executed by the accused. There is not even a signature of the complainant on Ext.D2 for having received and accepted Ext.D1. It is a copy and not the original. In these circumstances the courts below, according to me, were absolutely justified in not placing reliance Crl.R.P No.918 of 2001 6 on the oral evidence of DWs 1 to 3 and Ext.D1. On the available evidence, the acceptance of the oral evidence of PWs 1 and 3 in the light of Ext.D1 and the admitted stand of the accused does appear to me to be absolutely justified. At any rate at this third tier of criminal litigation the concurrent finding of the courts below on that aspect does not deserve to be interfered. The challenge on the first ground must in these circumstances fail. 10. The counsel next contends that no notice of demand has been issued. The complainant in his evidence stated that the notice of demand has been issued. The same was issued under Ext.P3 postal receipt and was acknowledged under Ext.P4 acknowledgment, according to the complainant. The accused took the stand that he has not signed Ext.P4. The positive admission of the accused as DW1 is that the address shown in Ext.P4 is that of the petitioner. The presumption of due service must inevitably follow under Section 114 of the Indian Evidence Act. 11. The counsel contends that the signature in Ext.P4 does not tally with the petitioner's admitted signature in the other documents. The appellate court considered this contention. On verifying the admitted signatures, viz. a viz. the disputed signature in Ext.P4, the appellate court found that the Crl.R.P No.918 of 2001 7 signatures in these documents tally eminently. In the nature of the contention raised, I have looked into the admitted and undisputed signatures of the petitioner in the cheque, in the summons received, in the 313 statement as also in his deposition as DW1. I have noted the signatures of the accused when his plea was recorded on 18.09.1993 also. Of course the courts are not experts in identification of the genuineness of signatures. But I must say that having perused all documents, the conclusion appears to be irresistible that the courts below, which compared the signatures as enabled by Section 73 of the Indian Evidence Act, has not committed any error warranting revisional interference in concluding that the signature in Ext.P4 is that of the accused. I repeat that admittedly that notice was acknowledged in the correct address of the petitioner shown in Ext.P4. In these circumstances I find no merit in the contention that Ext.P4 cannot be reckoned as acknowledgment of the petitioner/accused. 12. Undaunted, the learned counsel for the petitioner contends that even if it be accepted that the signature in Ext.P4 is that of the petitioner, the complainant must be held to have failed grossly in discharging his burden to prove that a proper notice of demand had been issued. Copy of the notice of demand Crl.R.P No.918 of 2001 8 is seen produced by the complainant along with the complaint. Document No.2 shown in the list of documents is the notice of demand issued by the counsel. But we do find that when PW1 was in the witness box that copy of the notice was not marked through him. The appellate court considered this aspect clearly. It noted the oral evidence of PW1 that notice of demand was issued and the same was acknowledged. It noted that there was no specific challenge about the inadequacy or sufficiency of the notice. It is, in these circumstances, that the court below came to the conclusion that if the accused has a plea that the notice of demand was in any way insufficient, that original notice received by the accused must have been produced by the accused. Ordinarily it is for the complainant to prove his case. But the mere omission in a case like the instant one to formally mark the notice of demand when the court was satisfied that the notice of demand has been served on the accused according to me is not a sufficient ground at this third tier of litigation to overturn the verdict of guilty and conviction. The copy of the notice of demand is very much available in the file and the oral evidence of the complainant shows that the notice was issued under Ext.P3 postal receipt and was acknowledged under Ext.P4. In these circumstances from the mere omission to formally mark Crl.R.P No.918 of 2001 9 copy of the notice which is available in court, I am satisfied that the verdict of guilty and conviction need not be overturned at this third tier of litigation. 13. The learned counsel for the petitioner further contends that even if the notice of demand, copy of which is produced as document No.2, were perused by this Court, this Court must come to the conclusion that it is not a notice of demand satisfying the requirements of 138 of the Negotiable Instruments Act. 14. What are the reasons ? The learned counsel for the petitioner contends that the demand in the notice was to pay “the amount plus cost of this notice Rs.100/- within 15 days on receipt of this notice”. The cheque amount has not been specified in the demand portion of the notice. The counsel proceeds further and contends that there is not even a specific statement as to what the cheque amount is. Para.1 of the document No.2 produced along with the complaint reads as follows: “That you owed Rs.15,000/- (Fifteen thousand only) to my client and issued a cheque No.14550 dated 16.10.1992 drawn on “The Trivandrum District Co-operative Bank Ltd., Venjaramoodu Branch” after assuring my client that you have got sufficient funds in your account.” Crl.R.P No.918 of 2001 10 It is thereafter that the demand portion of the notice appears in the following words in para.4 “So if you are interested in avoiding a litigation, you are hereby called upon to pay the amount plus the cost of this notice Rs.100/- within fifteen days of receipt of this notice. Failing which legal steps will be initiated against you and you will be held responsible for the consequences thereof.” 15. It is trite that a document has to be read as a whole. There can be no room for hyper technicality in understanding a document. I have gone through the notice of demand carefully. If one were to reasonably read and understand the notice of demand the conclusion is inevitable that the recipient is notified of the need to pay the amount of Rs.15,000/- along with cost of the notice Rs.100/- to satisfy Section 138 of the Negotiable Instruments Act. Any different reading of the notice of demand would be myopic and would not be conducive to commonsense and reasonableness. In these circumstances I take the view that there is no merit in the contention that the demand made under document No.2 produced along with the complaint falls short of the legal requirements of a valid notice under Section 138 of the Negotiable Instruments Act. The challenge raised against the sufficiency of the notice of demand must also in these circumstances fail. Crl.R.P No.918 of 2001 11 16. No other contentions have been raised. I am satisfied in these circumstances that the impugned concurrent verdict of guilty and conviction and the modified sentence imposed by the appellate court do not warrant interference. The challenge in these circumstances hence fail. 17. This Crl.R.P is, in these circumstances, dismissed. 18. The petitioner shall have time till 17.08.09 to appear before the court below to suffer the modified sentence imposed by the appellate court. Till then the sentence shall not be executed. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 17.08.09. (R.BASANT, JUDGE) rtr/-