IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.Rev.Pet.No. 2032 of 2009() ------------------------------ CRA.293/2008 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM ST.805/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, CHANGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- RAMANI.P.D., PLUTHUPPARAMBIL HOUSE, MALAKUNNAM P.O., CHANGANACHERRY TALUK. BY ADV. SRI.C.S.MANILAL RESPONDENT(S)/RESPONDENT/ COMPLAINT AND STATE: ----------------------------------- 1. SUNILKUMAR.T.V., THEKKEMUNDACKAL HOUSE, MALAKKUNNA P.O., CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2032 of 2009 -------------------------------------- Dated this the 9th day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Concurrent finding entered by the courts below as to the execution of a cheque for discharge of legally enforceable debt/liability is under challenge in this revision. Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Changanacherry for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.50,000/- from him and for discharge of that liability issued cheque (Ext.P1) dated 13.2.2006. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Issue and service of notice on petitioner are proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and stated about the transaction leading to the execution of the cheque. Petitioner claimed and suggested to respondent No.1 that she had no transaction with the latter. Instead she was in close acquaintance with the mother of respondent No.1 and had some financial transaction with her. In connection with that she had given a signed blank chequye to the mother of respondent No.1 and that was misused. Courts below found against that Crl.R.P.No.2032/2009 2 contention and held that petitioner issued the cheque as claimed by respondent No.1. According to the learned counsel, conviction and sentence on petitioner cannot stand since respondent No.1 has not proved the original transaction and since due execution of the cheque is not proved. 3. Going by the evidence of respondent No.1, transaction between him and petitioner was sometime before 13.2.2006. In cross examination he stated that he lent money to the petitioner on 15.12.2005 and later, on his demanding repayment petitioner issued the cheque on 15.1.2006. He had not taken any document at the time he lent money to the petitioner. It is contended by learned counsel that petitioner is not having that much acquaintance with respondent No.1 so that the latter would not have taken a document at the time of alleged original transaction. That circumstance along with Ext.P1, cheque is typewritten supported the contention of petitioner, it is argued. 4. Question whether original transaction has to be proved should depend on the facts and circumstances of each case. Going by the scheme of Section 138 of the Negotiable Instruments Act, it cannot be said that it is imperative on the part of the payee or holder in due course to prove the original transaction. What is required is to plead and prove due execution of the cheque. Once due execution of the cheque is admitted or proved, law enables the court to presume that such execution was for the discharge of a debt/liability. Of course, legality or enforceability of the debt/liability is again a matter which the payee or holder in due course has to prove. This Court has held in Johnson Skaria v. State of Kerala (2006 (4) KLT 290) that it is not the Crl.R.P.No.2032/2009 3 mandatory requirement of law that original transaction has to be proved. 5. Question is whether in the circumstances stated by respondent No.1 he would have advanced Rs.50,000/- to the petitioner on 15.12.2005 without taking any document to evidence that. That also is a matter the decision of which should turn around the relationship or acquaintance between parties. In this case, even petitioner claimed that she is closely acquainted with the mother of respondent No.1 and had transactions with her. Therefore, respondent No.1 cannot be said to be a stranger to the petitioner. As respondent No.1 stated, petitioner used to visit his mother on several occasions and thus, petitioner was known to him. It is also his statement that some time back petitioner was staying in his neighbourhood about twelve houses away from his own house. He stated that it was on account of the confidence he had in the petitioner he had not taken a document at the time he lent money on 15.12.2005. So far as that evidence of respondent No.1 is not improbable, I am of the view that this case cannot be thrown out for the mere reason that respondent No.1 did not take a document at the time of transaction. It has come in evidence that statutory notice was served on petitioner. Petitioner is an LIC agent and must be knowing the consequence of dishonour of a cheque for insufficiency of funds. She should have been aware, atleast it must be so presumed that she is liable for prosecution in a criminal court. Still, she did not answer the statutory notice. Viewing the circumstances stated by respondent No.1 in that backdrop, I do not find anything strange or unusual in respondent No.1 not taking a document at the time of transaction on 15.12.2005. Crl.R.P.No.2032/2009 4 6. Then the question is whether due execution of the cheque is proved, necessarily when that is denied, respondent No.1 had to prove that. He states that while petitioner was going to the temple during mid January, 2006, he asked her to return the loan and she complied by delivering the cheque to him the next day. True, Ext.P1 is typewritten. But if the version of respondent No.1 is accepted, that was done by petitioner herself for according to him petitioner signed and handed over the cheque to him. Petitioner does not dispute that Ext.P1 contained her signature her case being that it was handed over to the mother of respondent No.1 in signed blank form. There again, one has to revert to the failure of petitioner to send a reply to the statutory notice. Assuming that she maintained cordial relationship with the mother of respondent No.1, atleast when she got the statutory notice which is forerunner for a prosecution that should have alerted her. If the version of the petitioner were correct, she would have in the normal course, given a reply to the statutory notice in the way she now contends. She has no satisfactory explanation for not replying to the statutory notice. I have gone through the evidence of respondent No.1 and find no reason to disbelieve him. Courts below also found no reason to disbelieve him. Finding regarding execution of the cheque is based on an appreciation of the evidence on record in the light of the contention raised by the petitioner. As that finding is not vitiated by any illegality, irregularity or impropriety I do not find reason to interfere. 7. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and to pay fine of Rs.30,000/- There was a Crl.R.P.No.2032/2009 5 default sentence of simple imprisonment for one month. It was directed that fine if realised will be paid to respondent No.1 as compensation. Appellate court while retaining sentence of fine and default sentence modified substantive sentence as simple imprisonment till rising of the court. I do not find reason to interfere. 8. Learned counsel requested that petitioner may be granted three months’ time to deposit the fine in the trial court. Counsel stated that petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel, I am inclined to allow that request. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted three months’ time from today to deposit fine in the trial court. Petitioner shall appear in the trial court on 12.10.2009 to receive the sentence. Until then, execution of warrant if any against the petitioner will remain in abeyance. THOMAS P.JOSEPH, Judge. cks