IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 Crl.Rev.Pet.No. 1470 of 2008() ------------------------------ CRL.APPEAL No.370/2006 OF ADDL. DISTRICT & SESSIONS COURT, FAST TRACK COURT-III, PATHANAMTHITTA C C No.1335/2005 OF JUDICIAL FIRST CLASS MAGISTRATE, PATHANAMTHITTA ................................................ REVN. PETITIONER/ APPELLANT/ACCUSED: -------------------------------------- SUBASH V.GEORGE,VADAKKEVEETTIL HOUSE, VETTIPURAM,PATHANAMTHITTA P.O., PATHNAMTHITTA DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS/ STATE AND COMPLAINANT: ------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. LUCY SEBASTIAN,EDATHINEKAM HOUSE, PERUVATHANAM P.O., PERUVATHANAM VILLAGE, IDUKKI DISTRICT. ADV. SRI.L.RAJESH NARAYAN FOR R2 SMT.LAKSHMI.N.KAIMAL FOR R2 SRI.RENJITH B.MARAR FOR R2 PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 1470 of 2008 --------------------------------------- Dated this 20th day of August 2009 ORDER This revision is in challenge of judgment of learned Sessions Judge, Pathanamthitta in Criminal Appeal No.370 of 2006 arising from C.C.No.1335 of 2005 of the court of learned Judicial Magistrate of First Class-1, Pathanamthitta. Petitioner faced trial in that case for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.2, petitioner issued Ext.P1, cheque dated 11-08-2005 for discharge of liability to the tune of Rs. Six Lakhs. That cheque was presented for encashment but it was returned for insufficiency of funds as proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.2 gave evidence as PW1 and spoke to the transaction leading to the execution of the cheque. Petitioner contended that he had no transaction with respondent No.2. Instead, he had borrowed Rs. Fifteen Lakhs from one Abraham Philip and given three cheques as security. Of the said amount he has already repaid Rs. Eleven Lakhs. He claimed that the balance amount payable is only Rs. Four Lakhs which he is prepared to pay. Learned magistrate did not uphold his contention and found him guilty. Appellate court has concurred with that finding. learned counsel contended that due execution of the Crl.R.P.No.1470 of 2009 2 cheque is not proved. Respondent No.2 has not proved the alleged transaction. It is also contended that courts below have not properly appreciated the contention raised by petitioner. Learned counsel for respondent No.2 supported the judgment. 2. According to the petitioner, respondent No.2 had some illicit affair from Abraham Philip from whom he had borrowed Rs.Fifteen Lakhs. Case of petitioner is that one of the three cheques he had given to Abraham Philip was misused and complaint is filed through respondent No.2. Respondent No.2 initially denied that she is acquainted with Abraham Philip but later admitted that he is a relative of her. In the chief affidavit respondent No.2 has given her address as residing in Mary Sadan, in Adoor Taluk originally hailing from Koodathinakam Veettil (probably a mistake for Edathainekam House, Peruvathatnam P O). She denied that she is having any such affair with Abraham Philip as suggested by petitioner. She claimed that petitioner is acquainted to her since 2-3 years (before her examination in the trial court) and claimed that she advanced a sum of Rs. Six Lakhs and for repayment of that amount petitioner issued the cheque. The contention raised is that it is not shown that respondent No.2 had the capacity to pay the said amount and further that the complaint does to say about the genesis of the transaction. A further contention is that Ext.P1, the cheque is dated 11-08-2005 which is the date of the Crl.R.P.No.1470 of 2009 3 cheques in the complaints preferred by Abraham Philip as well. learned counsel contends that even the complaint preferred by respondent No.2 is identical with the complaints prepared by Abraham Philip in the two cases filed by him. 3. But, these contentions do not arise in this case as there is no factual basis for that. It is not brought out in this case that the cases filed by Abraham Philip related to the cheques dated 11-08-2005. Nor is the copy of those cheques introduced in evidence in this case. Copy of complaints preferred by Abraham Philip are also not produced in this case. This case was not tried jointly with the case filed by Abraham Philip. Therefore, reference to the records of other cases filed by Abraham Philip is not possible or justified. I have gone through the evidence of respondent No.2. I find that there is no contention raised that the cheque is not signed by the petitioner or that he has not filled up the same. It is true that respondent No.2 did not say that the cheque was filled up by petitioner. But, I am inclined to think it was not necessary for her to say so specifically as she stated that petitioner issued the cheque in her favour. If petitioner has a contention that the handwriting in the cheque is not of his, he should have questioned respondent No.2 in that regard. No such question has been to put to respondent No.2. I also notice that apart from making some suggestions to respondent No.2 about her so called affair with Crl.R.P.No.1470 of 2009 4 Abraham Philip and petitioner allegedly borrowing the amount from Abraham Philip, there is no serious challenge to the evidence of respondent No.2 regarding her financial stability to lent the sum of Rs. Six Lakhs or regarding the execution of the cheque. 4. It is true that mere admission of signature did not amount to admission or proof of due execution of the cheque but certainly that went a long way in proving due execution of the cheque. I have pointed out that respondent No.2 was not questioned seriously with reference to the alleged execution of the cheque. Petitioner has not replied to the statutory notice served on him. 5. Courts below after referring to the contention raised by the parties state that the signature in the cheques is admitted by the petitioner, due execution of the cheque is admitted or proved and that petitioner has not rebutted the presumption under section 139 of the Act. No doubt, admission of signature is not sufficient but a remand of the case is not warranted and will be an empty formality in the nature of cross examination of respondent No.2. On the facts, circumstances and evidence of the case, I am not persuaded to think that there is any illegality, irregularity or impropriety in the courts below holding in favour of due execution of the cheque. When the negotiable instrument is produced from the custody of respondent No.2 and there is nothing on record to disbelieve her evidence, there is no reason to Crl.R.P.No.1470 of 2009 5 think that the cheque was not issued for the discharge of debt/liability and the presumption under section 139 of the Act is also not rebutted. That being the factual and legal position I do not find reason to interfere with the concurrent finding entered by the courts below regarding due execution of the cheque and consequent conviction of petitioner. 6. Learned magistrate has sentenced petitioner to undergo simple imprisonment for six months and directed payment of compensation of Rs. Six Lakhs with a default sentence of imprisonment for three months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court and fine of Rs.Six Lakh Twenty Five Thousand with default sentence of imprisonment for six months. Having regard to the amount covered by the cheque and all other relevant circumstances, I am satisfied that fine awarded by the learned Sessions Judge can be converted as compensation payable to respondent No.1, directly to her if petitioner so chose. Considering relevant facts and circumstances of the case, compensation payable is fixed as Rs. Six Lakhs. Considering the amount involved, I am inclined to grant time to the petitioner till 28-01-2010 for deposit/payment of compensation as aforesaid. Resultantly this revision petition is allowed in part to the following extent: Crl.R.P.No.1470 of 2009 6 1. While retaining the substantive sentence as modified by the appellate court, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs. Six Lakhs by way of compensation under section 357(3) of the Code of Criminal Procedure on or before 28-01-2010 failing which petitioner shall undergo simple imprisonment for six months. 2. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through her counsel acknowledging receipt of compensation within the period aforesaid. 3. Petitioner shall appear in the trial court on 30-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 30-01-2010. THOMAS P JOSEPH, JUDGE Sbna/