IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 492 of 2001() ----------------------------- CRA.475/1999 of ADDL. SESSIONS COURT, THRISSUR CC.505/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER(S): ------------------------------------ K.R. KUMARAN, S/O. RAMANKUTTY, KANDAMPULLY HOUSE, MEPPADAM P.O., CHELAKKARA, THALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): --------------------------- 1. K.R. PURUSHOTHAMAN, S/O. RAMANKUTTY, KANDAMPULLY HOUSE, MEPPADAM P.O., CHELAKKARA, THALAPPILLY TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. C.M. KAMAPPU. ADV. SRI.BABU S. NAIR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2291 OF 2001 IN CRL.R.P. NO.492 OF 2001: CLOSED 2/6/2009 SD/- R. BASANT, JUDGE. //true copy// R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 492 of 2001 ------------------------------------------------- Dated this the 2nd day of June, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the Negotiable Instruments Act. The appellate court had modified the sentence imposed. The revision petitioner now faces a sentence of simple imprisonment for a period of one month and to pay a fine of Rs.5,000/-. In default to payment of fine, the petitioner is directed to undergo a default sentence of simple imprisonment for a period of three months. 2. The complainant alleged that Ext.P1 cheque for Rs.20,000/- was issued to him by the accused for the due discharge of a legally enforcible debt/liability. The cheque when presented was dishonoured on the ground of Crl.R.P. No. 492 of 2001 -: 2 :- insufficiency of funds. Notice of demand was issued. The statutory time table was scrupulously observed. Notice of demand did not succeed in securing the payment; instead a reply notice was issued in which it was contended that the cheque was not issued for due discharge of any legally enforcible debt/liability. A fairly specific contention was taken up. It was contended that the cheque was issued as a blank signed cheque as security to a kuri company while the accused entered into some transaction with them. The liability was discharged. The kuri company had returned the signed blank cheque. The same was kept in the house of the mother of the accused where the accused resides. From that house the complainant had fraudulently removed the signed blank cheque. 3. Before the learned Magistrate the complainant examined himself as P.W.1. The bank Manager was examined as P.W.2. Exts.P1 to P8 were marked. In the course of cross- examination of the complainant and his witness and when examined under Sec.313 Cr.P.C., the accused stuck to the stand taken in Ext.P7 reply notice. No defence evidence was adduced. 4. The courts below, in these circumstances, concurrently came to the conclusion that the complainant had succeeded in establishing all the ingredients of the offence punishable under Crl.R.P. No. 492 of 2001 -: 3 :- Sec.138 of the N.I. Act. Accordingly, they proceeded to pass the impugned judgments. 5. Called upon to explain the nature of the challenge which the petitioner/accused wants to mount against the impugned concurrent judgments, the learned counsel for the revision petitioner assails the impugned verdict of guilty, conviction and sentence on the following grounds: (1) The courts below ought to have come to the conclusion that the cheque has not been proved to be issued for the due discharge of any legally enforcible debt/liability. (2) The sentence imposed is, at any rate, excessive. 6. Ground No.(1): The law on the point is well settled. It is unnecessary to refer specifically to the precedents. The burden is undoubtedly on the complainant to prove that the cheque was issued for the due discharge of a legally enforcible debt/liability. He has to prove the execution of the cheque and handing over of the cheque by the accused to him for the due discharge of a legally enforcible debt/liability. Under Secs.118 and 139, presumptions are available in favour of the complainant; but the play of the presumptions would start only when execution and handing over of the cheque are proved to the satisfaction of the court. The presumption under Secs.118 Crl.R.P. No. 492 of 2001 -: 4 :- and 139, shall not help the complainant to persuade the court to presume that the cheque has been issued or handed over. But once execution and handing over are proved, the presumption under Secs.118 and 139 come into play. Consideration has to be presumed. It has also got to be presumed that consideration for issue of the cheque was the discharge of a legally enforcible debt/liability. 7. In this case we have only the oral evidence of P.W.1. His evidence has, of course, been challenged before court in the course of cross-examination. But it must be noted that primarily we have the oral evidence of the complainant about the circumstances under which the cheque drawn on a cheque leaf issued to the accused by his bank to operate his account with his signature admittedly affixed on it travelled from the possession of the accused to that of the complainant. The courts will not lightly assume that blank signed cheques were kept by account holders to be available for all and sundry for misuse. The oral evidence of the complainant – P.W.1, is thus eminently supported by his ability to produce Ext.P1 cheque which admittedly bears the signature of the accused and is drawn on a cheque leaf issued to the accused by his bank to operate his account. 8. It will be inapposite to note that the accused has not Crl.R.P. No. 492 of 2001 -: 5 :- adduced any evidence in support of the theory advanced by him that he had handed over the blank cheque to a kuri company; that he had discharged his liability to them; that they had returned the cheque to him; that he had kept the same in his house and that the accused had taken away such cheque. Though there is a contention that the cheque was stealthily removed from the possession of the complainant, there is absolutely nothing to prove the probablise or even suggest the probability and feasibility of such a defence. 9. It is, of course, well settled that the accused need not prove his case to the hilt. Even if he succeeds in generating a reasonable doubt on the initial case of the complainant about the execution and handing over of the cheque, the accused shall be entitled to the benefit of doubt. But the benefit of doubt cannot be lightly conceded. The oral evidence of P.W.1 points to the acceptability of his case that the cheque was issued for the due discharge of a legally enforcible debt/liability. The accused need not, of course, adduce any evidence. From the evidence of the complainant, he must show that his version is probable. 10. I now look at the circumstances relied on by the accused. He contends that he and the complainant were at loggerheads. Even though there is a suggestion in the course of Crl.R.P. No. 492 of 2001 -: 6 :- cross-examination that his mother had claimed maintenance from his father and that the accused is staying with the mother while the complainant is residing with the father, there is no semblance of a valid suggestion or evidence to show that there was any anterior disputes between the parties except a criminal case in which the mother of the accused suffered injuries and the complainant's wife along with some others faced prosecution for such criminal offence. In that case the accused as P.W.4 had allegedly tendered evidence in favour of the prosecution. The accused heavily relies on the circumstance that when the relationship was so strained it was improbable that a transaction could have been entered into between the complainant and the accused. This is the trump card relied on by the complainant to assail the theory advanced by P.W.1 that there was a transaction and the cheque was issued for the due discharge of the legally enforcible debt/liability in such transaction. 11. The judgment in the criminal case is not formally introduced into evidence. But I find that the said judgment is available in the file. I have gone through the same. It only shows that the accused as P.W.4 was examined as a witness in that prosecution. It is significant to note that a reading of the judgment shows clearly that the accused had not tendered any Crl.R.P. No. 492 of 2001 -: 7 :- evidence against the complainant's wife or the other accused. It was certainly for the accused to adduce proper evidence. He has not adduced the same. Reference was made to the judgment in C.C.No.222/96. Though strictly not justified I have gone through the contents of that judgment which is not marked. That cannot at all reveal P.W.4, the accused herein, had tendered any evidence directly against the complainant's wife or the other co- accused. In these circumstances, the contention that there was such animosity between the complainant and the accused to render the version about the alleged transaction leading to the issue of Ext.P1 cheque improbable and unacceptable cannot be accepted. More so, in the nature of the unsatisfactory attempt made by the accused to assail the evidence of P.W.1, I am, in these circumstances, satisfied that there is no merit in the challenge raised against the concurrent finding that the cheque was issued for the due discharge of a legally enforcible debt/liability. 12. Ground No.(2): Coming to the question of sentence, I find merit in the plea for leniency raised by the accused. The cheque was for an amount of Rs.20,000/-. The same was issued as early as on 5/1/98. I have already adverted to the principles governing imposition of sentence in a prosecution under Crl.R.P. No. 492 of 2001 -: 8 :- Section 138 of the N.I Act in the decision reported in Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight three rounds of legal battle by now and to wait from 1998 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 13. In the result: (a) This Crl.R.P is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I Act are upheld; (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the court below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.27,500/- as compensation under Section 357(3) Cr.P.C and in default to undergo simple imprisonment for a period of three months. If the amount is not paid directly to the complainant and is Crl.R.P. No. 492 of 2001 -: 9 :- deposited or recovered through court, the same shall be released to the complainant entirely. 14. The petitioner shall have time till 31/7/09 to make the payment and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before that date for execution of the modified sentence hereby imposed. (R. BASANT, JUDGE) Nan/ Crl.R.P. No. 492 of 2001 -: 10 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 492 of 2001 ------------------------------------------------- Dated this the 2nd day of June, 2009 ORDER