IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Crl.Rev.Pet.No. 2021 of 2009(N) ------------------------------- CRA.303/2002 of ADDL.SESSIONS JUDGE, ADHOC-II, THALASSERY CC.785/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- N.DAMODARAN, S/O.CHATHU, AGED 40 YEARS, COOLIE, PORARA AMSOM AND DESOM, MATTANNUR, THALASSERY. BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENT(S): RESPONDENT/COMPLAINANT. -------------------------------------- 1. K.P.SAJEEVAN, S/O.GOVINDAN, AGED 36 YEARS, KORONCHAL HOUSE, KEECHERI PO, MATTANNUR, THALASSERY. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2021 of 2009 -------------------------------------- Dated this the 30th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Thalassery in Crl.Appeal No.303 of 2002 confirming conviction but modifying the sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act. Petitioner faced trial in the court of learned Judicial Magistrate of First Class, Mattannur in C.C.No.785 of 1998 on a private complaint preferred by respondent No.1.. He alleged that petitioner borrowed Rs.40,000/- from him in December, 1997 undertaking to repay the same within two months and issued Ext.P1, cheque dated 20.2.1998 for repayment of that debt. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P6. Issue and service of statutory notice on petitioner are proved by Exts.P3 to P5. Findings entered by the courts below as to the cause of dishonour and service of notice are not challenged before me. 3. Respondent No.1 gave evidence as PW1 regarding the transaction and stated to his case. In the course of cross examination when he was Crl.R.P.No.2021/2009 2 questioned about the source of money, he claimed that he had been working under DW2 and received the amount from DW2 by way of labour charges. Petitioner claimed that no amount is due to respondent No.1 nor had he issued any cheque. According to the petitioner, his brother had offered to send some money to his account and to facilitate withdrawal of that amount by his wife he had obtained two cheque leaves from the drawee bank, signed the same and kept in his purse. While he was engaged in loading timber at Keecheri he lost those signed blank cheques. One of those cheques has been misused by respondent No.1. Petitioner gave evidence as DW1 in that line. DW2 denied that respondent No.1 had worked for him or received any amount from him. It is argued that version of respondent No.1 as to the source of money stands exploded by the evidence of DW2 and hence his case that he lent Rs.40,000/- to the petitioner cannot be believed. Learned counsel contended that version of petitioner is probable in which case finding of the courts below as to due execution of the cheque cannot be sustained. 4. There is no doubt that petitioner as the accused need only show that his case is probable. But 'probability' has to be depend on the facts and circumstances of the case. In deciding that, question whether his version that he lost the cheque can be believed also arises for consideration. It is not disputed that Ext.P1 contained the signature of the petitioner and is drawn on the account maintained by him. According to the petitioner, he lost the cheques while he was engaging loading timber at Keecheri. He says that to facilitate his Crl.R.P.No.2021/2009 3 wife withdraw some amount from his account which his brother had promised to send to his account he obtained two cheque leaves from the drawee bank, signed and kept the same in blank form in his purse. Courts below observed from Ext.P6 that it is revealed that the version of petitioner that he obtained two cheque leaves alone from drawee bank is not correct and that he was regularly transacting with his account through cheques drawn by him. It is to be noted that inspite of petitioner allegedly loosing two signed blank cheque leaves he neither preferred a complaint to the appropriate authority nor intimated that matter to his bank so that any payment as per the lost cheque leaves should be stopped. Though petitioner has a case that he had intimated the bank about the loss of cheque leaves there is nil evidence for that. Ext.P2 shows that dishonour of the cheque was merely for the reason of insufficiency of funds and not as payment was stopped. Courts below observed that it is difficult to accept the version of petitioner that even when he was going for timber loading at Keecheri, he was keeping signed blank cheque leaves in his purse. Yet another fact to be noted is that inspite of getting statutory notice claiming that the cheque issued by the petitioner in favour of respondent No.1 for Rs.40,000/- was dishonoured and demanding payment of that amount, petitioner did not reply. If respondent No.1 got the cheque stealthily as contended by the petitioner, one expected to reply to the notice when a claim as aforesaid was may on him. In these circumstances, version of petitioner that he had no transaction with respondent No.1 and that the latter stealthily got the signed blank cheque cannot be believed. Crl.R.P.No.2021/2009 4 5. So far as the source of money for respondent No.1 is concerned, he stated that he worked under DW2 and got labour charges from DW2. DW2 did not admit that. Courts below observed from the evidence of DW2 that he was not able to say who all had worked for his house construction and the version of respondent No.1 as to the source of money cannot be said to be false. If the version of DW2 were correct in my view it only meant that the version of respondent No.1 as to his source of money is found to be not correct. That necessarily did not mean that he had not advanced Rs.40,000/- to the petitioner. Courts below have considered the evidence and come to the conclusion that petitioner issued the cheque in favour of respondent No.1. When due execution of the cheque is proved, presumption is that it is for discharge of a debt or other liability arises. Then it is for the petitioner to rebut that presumption. Evidence let in by the petitioner is not sufficient to rebut that presumption. In the circumstances, courts bellows are justified in holding that petitioner issued the cheque for the discharge of a legally enforceable debt/liability. Going by the evidence of respondent No.1 which the courts below accepted, that was a legally recoverable debt. Hence conviction requires no interference. 6. Appellate court has modified the substantive sentence awarded to the petitioner as simple imprisonment till rising of the court. Sentence of fine of Rs.5,000/- awarded by the learned magistrate was set aside and instead, petitioner was directed to pay compensation of Rs.40,000/- to respondent No.1 and in default of payment to undergo simple imprisonment for three months. Crl.R.P.No.2021/2009 5 Substantive sentence as well as direction for payment of compensation and default sentence are in accordance with the object of legislation and required no interference. 7. Learned counsel requested that petitioner may be granted three months’ time to deposit compensation in the trial court. He stated about the difficulties being experienced by the petitioner in raising the amount within a short time. Having considered the submission of learned counsel I am inclined to allow the request for time. Resultantly this revision fails. It is dismissed. Petitioner is granted three months’ time from today to deposit compensation in the trial court as ordered by the appellate court and in default of payment, he shall undergo imprisonment as ordered by the appellate court. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period of four months. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks