IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 861 of 2005() ----------------------------- CRA.180/2003 of ADDL.SESSIONS COURT, THODUPUZHA CC.116/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONER: --------------------- M.G.GOPI, AGED 51, MALAYANKUNNEL VEEDU, CHATTUPARA KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. RAJAN, S/O.SUNDARA PANDIAN, SREELAKSHMI AUTOMOBILES, ADIMALY TOWN, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT. ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Crl. R.P. No. 861 OF 2005 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 09th day of December, 2008 J U D G M E N T This revision is preferred against judgment in Crl. Appeal No. 180/03 of the Additional Sessions Judge, Thodupuzha. The said appeal arose out of the conviction and sentence passed in C.C. 116/99 of the Judicial First Class Magistrate`s Court, Adimaly, whereby the accused was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo Simple Imprisonment for 3 months and to pay compensation of Rs.65,000/- (Rupees Sixty five thousand only) and in default Simple Imprisonment for one month. The appellate court dismissed the appeal confirming the conviction and sentence. It is against that decision the accused has come up in revision. 2. The learned counsel for the revision petitioner strongly contends before me, there is no sufficient evidence to prove the transaction and further his claim is that he had not received the notice which is mandatory under provisions of the Crl. R.P.861/05 : 2 : Negotiable Instruments Act. I had perused the judgments of the first court as well as appellate court. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.65,000/ and towards the discharge of liability he had issued a cheque, which when presented for encashment, returned with an endorsement of insufficiency of funds. In spite of receipt of notice, the amount was not paid which ended in launching prosecution u/s 138 of the Negotiable Instruments Act. The defence version is to the effect that the revision petitioner used to go and sit in the shop of the complainant who was selling second hand spare part and but for that acquaintance he has nothing to do with the complainant and therefore the case is false. The court below had scrutinised the evidence of PW1 and it is specifically stated therein that nothing has been brought out in cross examination to discredit the evidence of PW1. When the courts below were satisfied about evidence regarding execution, then naturally the presumption under Section 118 and 139 of the Negotiable Instruments Act will apply which of course are rebutable presumptions. There is no rebuttal evidence at all and Crl. R.P.861/05 : 3 : therefore the court found that transaction is proved and further that in spite of notice amount is not paid. 3. The learned counsel then pointed out before me, there is difference in address and further that signature in the acknowledgment card is not that of the revision petitioner. The court below had opportunity to compare the signature to arrive at a decision that it has been signed by the revision petitioner. I am conscious of the facts, comparison of the signature by the court is a hazardous process. But nevertheless section 73 of the Indian Evidence Act gives such power to the court and what is stated by, decision is to the effect that a conclusion cannot be arrived merely on the basis of the comparison of the signature, but it can be made use of as a corroborative piece of evidence to arrive at decision. It is, what that is precisely done by the courts below and therefore acceptance of notice by the petitioner also has been proved. So I do not find any illegality or irregularity so as to warrant interference on the conviction Under section 138 of the Negotiable Instruments Act. 4. Now let me consider about the sentence. The trial Crl. R.P.861/05 : 4 : court convicted the revision petitioner to undergo Simple Imprisonment for 3 months and to pay compensation of Rs.65,000/- (Rupees Sixty five thousand only) and in default Simple Imprisonment for one month. I feel this is a fit case where leniency can be shown. I modify the sentence of imprisonment to one of till rising of court and convert the compensation to fine. (i) Therefore the conviction and sentence u/s 138of the Negotiable Instruments Act is sustained. (ii) The sentence is modified and revision petitioner is sentenced to undergo imprisonment till rising of the court and to pay fine of Rs.65,000/- (Rupees Sixty five thousand only) which on realisation shall be disbursed to the complainant and in default revision petitioner shall undergo simple imprisonment for 3 months. (iii) The revision petitioner shall present himself before trial court to receive the sentence and pay fine on 16.02.09 failing which trial court shall execute the sentence. (iv) If any amount is deposited as compensation that Crl. R.P.861/05 : 5 : shall be converted as fine and the balance need to be deposited. The amount, if any, deposited shall be disbursed to the complainant on proper application. Crl. R.P. disposed of accordingly. (M.N. KRISHNAN, JUDGE) KMD