IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 Crl.Rev.Pet.No. 1187 of 2005 ------------------------------ CRA.473/2004 of V ADDL.SESSIONS COURT, ERNAKULAM C.C. NO. 742/1999 OF THE ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ------ REVN. PETITIONER: APPELLANT/ACCUSED. --------------------------------------- S.DEVAN, CINE ARTIST, NO.IV, 6TH CROSS STREET, LAKE AREA, NUNGAMBAKKAM, CHENNAI 600 034. BY ADV. SRI.G.JANARDHANA KURUP, SENIOR ADVOCATE SRI.JAI GEORGE RESPONDENTS/: RESPONDENTS/COMPLAINANT. --------------------------------------- 1. C.KRISHNA MENON, SOWPARNIKA, RAVIPURAM ROAD, VALANJAMBALAM, ERNAKULAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 SRI.T.RAMPRASAD UNNI FOR R1 SRI.P.RAJKUMAR FOR &SMT. SARITA DAVID CHUNGATH FOR R1 BY PUBLIC PROSECUTOR MR.,K.J. MOHMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/04/2010 ALONG WITH CRRP.NOS.1186 & CONNECTED CASES,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== CRL.R.P.NOS.1186, 1187,1188 & 1197 OF 2005 ============================ DATED THIS THE 9TH DAY OF APRIL 2010 ORDER Basant,J. i)Does a cheque cease to be a cheque merely because the drawer raises a dispute about the execution of the cheque and the genuineness of the signature in the cheque? ii) Does it cease to be a cheque when a banker constrained to dishonour the cheque of a valued customer instead of returning it with the endorsement that there is no sufficient funds includes the reason that the signature differs? iii) Is an obliging banker making such an CRRP.1186/2005 & connected cases -2- endorsement to be reckoned as the final arbiter of culpability in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. iv) Does not the court have jurisdictional competence in a prosecution under Section 138 of the Negotiable Instruments Act to ascertain the real reason for the dishonour of the cheque notwithstanding the purported reasons stated by the Banker ? v) Does the decision in Thomas Varghese v. P.Jerome [1992 CRI.L.J.380] require or warrant reconsideration? vi) Is there a conflict between the decision in Rejikumar v. Sukumaran [2002 KHC 409] and the decision in M.I. Kumaran v. Abdul Karim and another, [2006(1)K.L.D.(Cri)811]. 2. These interesting questions arise for consideration in this revision petition which has come up before us on a reference by a learned single Judge, who appears to have doubted the correctness of the decision in Thomas Varghese CRRP.1186/2005 & connected cases -3- (Supra). 3. We have heard the senior Counsel Sri. G Janardhana Kurup for the revision petitioner/accused and Ms.Saritha David Chungath for the respondent/complainant. The parties shall be referred to in this order as accused and complainant respectively for the sake of easy reference. 4. The facts scenario which is not in dispute can be summarised as follows: 5. Four cheques each for Rs.5.5 lakhs marked as Ext.P1 respectively in the four cases which have been disposed of by a common judgment are the subject matter of these prosecutions. A monetary transaction between the parties is admitted and is not disputed. That there is an undischarged liability for the accused to pay amounts to the complainant is admitted. That the cheques in question are drawn on cheque leaves issued by the Banker of the accused to the accused to operate his Bank account is again admitted. That the complainant is an affluent businessman and the accused is an educated cine artist is also accepted and conceded. That there was correspondence between them about the discharge of the liability and time CRRP.1186/2005 & connected cases -4- required for discharge of the liability is also admitted. That the cheques were successively presented for encashment and were dishonoured is admitted. That the cheques were finally presented for encashment and were dishonoured on 08/03/1999 is also admitted. That all the four cheques were dishonoured on 08/03/1999 on the twin grounds - “signature differs and funds insufficient” is again admitted. That the statutory time table has been scrupulously followed after that last dishonour is also conceded. That there was no funds available in the account to honour the cheque on the date of dishonour (8/3/1999) is also not disputed. That the accused had come to know of the earlier attempts for presentation of the cheque and dishonour of the same prior to its final presentation is also conceded. That the accused had not taken any steps after coming to know of such earlier instances of presentation and dishonour is also not disputed. Till now, no action has been taken against the complainant by the accused for alleged misuse of the cheques and that is also not disputed. 6. To the controversy now. The complainant alleged that the cheques were issued to him for the due discharge of a CRRP.1186/2005 & connected cases -5- legally enforceable debt/liability. According to the complainant, the accused owed an amount of Rs.20 lakhs. It was not repaid in time. For return of the said amount of Rs.20 lakhs along with interest which was fixed at Rs.2 lakhs, four cheques each for Rs.5.5 lakhs (total Rs. 22 lakhs) were allegedly issued by the accused to the complainant. Those cheques are marked as Ext.P1 (four cheques) in this prosecution. When the complainant presented the same and it was returned on the twin grounds referred above, the complainant suspected that the accused had fraudulently affixed a different signature with malicious intent to defraud him. The complainant contended that notwithstanding the obliging additional reason shown by the banker that “the signature differs” the real reason for dishonour was insufficiency of funds. The accused, on the contrary, took up a stand towards the fag end of the trial that the cheques were not issued by him to the complainant for the due discharge of any legally enforceable debt/liability. He took a stand during cross examination of PW1 and during 313 examination that the cheque leaves were fraudulently and clandestinely obtained, his signatures were forged in those CRRP.1186/2005 & connected cases -6- cheques and those cheques were misused and presented for encashment before the Banker by the complainant. 7. Separate trials commenced. The complainant was examined in all the four cases and documents were marked separately. At that juncture, it appears, joint trial was ordered. The trial continued. The complainant was cross examined in one case after the cases were consolidated. Exts.P1 to P4 were marked in all the four cases. They are the cheques, memo of dishonour, copy of notice and reply notice respectively. Exts.P5, P5(a) and P6 were marked in common after the cases were consolidated and the consolidated trial proceeded. Exts.D1 to D18 were marked by the accused. No oral evidence was adduced by the defence. 8. The courts below – the trial court and the appellate court, concurrently held that the complainant has succeeded in establishing that the cheques in question were issued by the accused to the complainant for the due discharge of a legally enforceable debt/liability. The courts came to the positive conclusion that the cheques were signed executed and handed over by the accused to the complainant. The courts further CRRP.1186/2005 & connected cases -7- found that notwithstanding the further reason shown that the signature in the cheques differ, the real reason was insufficiency of funds. The courts further held that the statutory time table has been scrupulously followed by the complainant. In these circumstances, the courts proceeded to hold that the complainant has succeeded in establishing all ingredients of the offence under Section 138 of the Negotiable Instruments Act in all the four cases. Accordingly, the courts below proceeded to pass the impugned judgments. 9. Before us, the concurrent verdict of guilty, conviction and sentence are assailed on various grounds. We may, at the outset, attempt to specify the grounds of challenge. They are: 1.The finding of fact that the cheques were written, signed and handed over by the accused to the complainant warrants interference invoking revisional jurisdiction of superintendence and correction. 2.The courts below erred in invoking the power under Section 73 of the Evidence Act to compare CRRP.1186/2005 & connected cases -8- the signatures in Ext.P1 cheques with other admitted signatures. 3. The courts below erred in coming to the conclusion that the cheques were issued for the due discharge of a legally enforceable debt/liability. 4. The courts below ought to have held that when dishonour by the banker was not on one of the two grounds referred to in Section 138 of the Negotiable Instruments Act, no prosecution whatsoever can lie against the drawer of the cheque. 5. The complainant having chosen to make allegations of the offence punishable under Section 420 I.P.C. in the complaint against the accused, this prosecution under Section 138 of the Negotiable Instruments Act is legally not maintainable. 6. The courts below should have held that the prosecution is barred by limitation inasmuch as notice of demand had not been issued within the period CRRP.1186/2005 & connected cases -9- stipulated from the date of first dishonour on the ground, inter alia that the signature in the cheques differed. 7.The sentence imposed is excessive. 10. We have been taken through the oral and documentary evidence available in the case in detail. We have been taken through the complaint, answers given by the accused in 313 examination and all other relevant matters. We have been taken through the order of reference by the learned single Judge also meticulously and in detail. 11. At the very outset, we must remind ourselves of the nature, quality and contours of the jurisdiction of a revisional court. The jurisdiction of revision is essentially the power and the duty of superintendence and correction. In an appropriate case where the concurrent findings of fact are grossly incorrect and perverse, nothing can stop this court from invoking the revisional jurisdiction of superintendence and correction to interfere with such grossly erroneous or perverse findings of fact. It is unnecessary to refer to precedents which have been copiously cited at the bar and in the order of reference to CRRP.1186/2005 & connected cases -10- support the above proposition. The crucial question is whether the findings of fact rendered are so grossly erroneous or perverse as to warrant revisional interference. While considering this question, no court of revision can afford to ignore the fact that normally respect and regard must be given to the findings of fact concurrently affirmed by two courts. The trial court has the advantage of seeing the witnesses perform in the witness stand before it and that evident advantage which a trial Judge has, in the matter of appreciation of evidence, cannot be lost sight of. 12. Having thus reminded ourselves of the nature, quality and contours of the revisional jurisdiction and of the power which undoubtedly is available with the revisional court to interfere with the finding of fact which are grossly erroneous or perverse, we shall now consider the challenge raised on grounds 1 to 3. 13. It is again unnecessary to advert to precedents, it is by now trite and well established that the burden is on the complainant in a prosecution under Section 138 of the N.I.Act to CRRP.1186/2005 & connected cases -11- prove his case beyond doubt as is expected in every prosecution for a criminal indictment. In the instant case, we have the oral evidence of PWs.1 and 2 about the execution of the cheques. The learned counsel for the accused contends that the oral evidence of PWs.1 and 2 do not deserve to be accepted at all. The counsel argues that PW2 was just a casual witness who allegedly happened to be present with the complainant when the cheques were allegedly handed over by the accused. Primarily, we have the oral evidence of PW1. His oral evidence is eminently supported by his ability to produce Ext.P1 cheques (four in number) which are admittedly drawn on cheque leaves issued to the accused by his banker to operate his account. The oral evidence of PW1 gets further support and assurance from the admitted circumstance that there was a financial transaction between the accused and the complainant. Ext.P5 as well as Exts.D1 to D17 eloquently declare that the oral evidence of PW1 that there was monetary transaction between the parties and that some amount remained to be paid by the accused to the complainant is correct. To crown all other circumstances is the crucial circumstance that the accused, CRRP.1186/2005 & connected cases -12- even after admittedly coming to know that cheques were presented before his Banker and attempt was made to collect amounts by presentation of such cheques remained silent, mute and inactive. Admittedly, even after coming to know that Ext.P1 cheques had been presented once or twice and were returned, dishonoured the accused did not take any steps to instruct his Banker to stop payment. He did not choose to call upon the complainant not to present the cheques. Even after coming to know that the cheques had been presented, accused had not raised a little finger against the complainant. According to the accused now, the cheques were stolen from his premises. His inaction, even after coming to know that the stolen cheques were being used to withdraw the amounts from his account, is eloquent. All these are circumstances which must weigh with a prudent mind while attempting to decide whether the oral evidence of PW1 can be accepted or not. 14. Of course, there is the evidence of PW2 also. The courts below did not find any reason to reject and discard the evidence of PW2. The question certainly is not whether, we, sitting as an original court for appreciation of facts would have chosen to CRRP.1186/2005 & connected cases -13- place reliance on the oral evidence of PW2 or not. The question is whether the revisional powers of superintendence and correction deserve to be invoked to interfere with the findings of fact concurrently recorded by the two courts. The courts below have chosen to accept and act upon the oral evidence of PW1 which is entirely supported by the oral evidence of PW2 and we find that the courts below have not committed any error warranting revisional interference in accepting the testimony and recording such findings of fact. Even if the oral evidence of PW2 were eschewed the court below cannot be said to have committed any error warranting revisional interference in choosing to accept and act upon the testimony of PW1, the complainant. 15. The unsubstantiated version of the accused also does go a long way to assure the court about the acceptability of the oral evidence of PW1. According to the accused, there was a business transaction . He does not dispute that he had a liability to discharge to the complainant. This is evident from the fact that Ext.P5 is not disputed. Exts.D1 to D17 also confirm that fact. CRRP.1186/2005 & connected cases -14- 16. The accused surprisingly has not chosen to specify what, if not Rs. 22 lakhs, is the amount, which he is legally liable to pay to the complainant. The accused takes a vague and evasive stand that there is unspecified liability to be discharged but the cheques were not issued by the accused to the complainant. The cheque leaves were stolen by the complainant and misused in an attempt to siphon out funds of the accused. That is the plea. 17. A careful reading of Ext.P3 notice of demand and Ext.P4 reply notice is in this context essential. Ext.P3 is a notice of demand issued by the counsel for the complainant on behalf of the complainant. Ext.P4 is reply issued by the accused himself to the counsel. A total and careful reading of Ext.P4 is essential and when so read, no prudent mind can be left with any semblance of doubt that the accused did not choose to dispute the genuineness of the signatures in Ext.P1 cheques or the fact that they were handed over by the accused to the complainant. Of course, vague and non specific denials are also raised in Ext.P4. The document must and has to be read as a whole and when so read crucial indications are available. The accused it is CRRP.1186/2005 & connected cases -15- crucial did not choose to deny the genuineness of the signatures in Ext.P1 cheques. The purpose for which they were handed over, was of course disputed, though the existence of some liability was not disputed as such. The accused took up a contention that he has an alias name also. Mohan and Devan are two names in which he holds himself out to the world. He sign in both names. In fact, Ext. P4 clearly shows that he receives cheques and drafts in both names. He maintains this stand in Ext.P4 and asserts that he has issued written instruction to his bank that he signs as Devan also. In the four cheques (Ext.P1), he has signed as Devan. The complainant in Ext.P3 in the wake of dishonour on the ground of “signature differs” also had raised an allegation that he had signed differently in the cheques maliciously to defraud the complainant. It is in reply to that, that the complainant had asserted in Ext.P4 that he used to sign in both manner and bank has been informed of such course of conduct adopted by him. 18. In Ext.P4, it is significant that the accused did not raise a contention that the cheques were fraudulently, clandestinely and in a malafide manner removed by the complainant from the CRRP.1186/2005 & connected cases -16- possession of the accused. But surprisingly in the course of the trial, we find such a case being advanced. Less said about this weired contention raised by the accused belatedly towards the fag end of the trial, the better. A prudent person cannot for a moment accept this bizarre contention advanced by the accused towards the later stage of the trial. Ext.P4, to our mind, eloquently conveys that this defence sought to be urged in the course of the trial cannot stand scrutiny of a reasonable and prudent mind. 19. The courts below, in an attempt to appreciate the evidence of Pws.1 and 2 that the accused had signed the cheques in their personal presence, did look into the admitted signatures of the accused otherwise available and the signatures in Ext.P1 cheques. It is argued that the courts below totally erred in resorting to this course. Precedents are relied on. 20. We find it unnecessary to refer specifically to Section 73 of the Evidence Act which undoubtedly clothes a court with the requisite powers and the court below cannot be found fault with at all for referring to and comparing the admitted signatures and the signatures in Ext.P1 in an attempt to CRRP.1186/2005 & connected cases -17- ascertain whether the oral evidence of PWs.1 and 2 about the execution of the cheques can be accepted. It is of course true that when there is a serious dispute, courts should not arrogate to themselves the power to decide and determine the genuineness of signatures, handwritings and thump impressions without expert opinion by its own naked eye comparison. The court may be referred to as the expert of experts, but no finding of a court should ordinarily rest solely on the comparison made by the court under Section 73 of the Evidence Act in the absence of evidence of any expert. 21. That is not the situation in the facts of the instant case. The court did not choose to peruse the documents and venture an opinion under Section 73 of the Evidence Act at all. Forced to choose between the version of the complainant and the stand taken by the accused, the court was obliged to decide whether the oral evidence of PW1 and of course PW2 can be accepted or not. It is for this purpose that the courts below referred to the admitted and disputed signatures and came to the conclusion that the oral evidence of PWs.1 and 2 can be preferred to the belated stand/version taken by the accused in CRRP.1186/2005 & connected cases -18- the course of trial and which was not taken in Ext.P4 notice. 22. It is then contended that an application filed by the accused to send the cheques to the expert before the appellate court was not allowed. The appellate court should have invoked its power under Section 391 Cr.P.C. to forward the cheques to the expert and secure expert opinion, it is contended. One of the easiest ways to secure protraction of trial is to make a request to send the cheques to the expert. Every such request will not be automatically and ritualistically be accepted and allowed by a Judge. Sufficient and satisfactory reasons must be shown to exist to justify such reference to an expert. In the instant case the accused had not made any such request before the trial judge. The totality of the circumstances to which we have already referred, particularly the fact that there is no specific denial of the genuineness of the signatures in Ext.P1 in Ext.P4 – nay there is a veiled admission also, does show convincingly that the request to forward the cheques to the expert at the appellate stage was not bona fide or acceptable. We are unable to agree that the lower (appellate) court has committed any error in not forwarding the cheques to the expert. CRRP.1186/2005 & connected cases -19- That would have been an unnecessary and meaningless exercise, according to us. The mere fact that the Banker had included the reason that the signatures differed (not even that the signatures do not appear to be genuine) is, according to us, too feeble and unacceptable a reason to persuade us to find fault with the appellate court for not invoking such powers under Section 391 Cr.P.C. 23. It is next contended that at any rate it has not been established that the cheques had been issued for the due discharge of a legally enforceable debt/liability. We have already concurred with the conclusions of the courts below that the cheques were signed, executed and handed over by the accused to the complainant. It is not the law at all that in a prosecution under Section 138 of the Negotiable Instruments Act, the complainant must establish the original cause of action in meticulous details. That is precisely why the presumption under Section 139 of the Negotiable Instruments Act has been incorporated in addition to the presumption under Section 118 of the Evidence Act which was already there. It is unnecessary to refer to the various precedents that have been cited at the CRRP.1186/2005 & connected cases -20- Bar. We need only reiterate that once the signature, execution and handing over of the cheque is satisfactorily proved by the evidence by the complainant, presumption under Section 139 of the N.I. Act comes into play and the same holds the field until the accused discharges the burden on him at least by the inferior standard of preponderance of possibilities and probabilities as applicable in a civil case. 24. Exts.D1 to D17 produced by the complainant themselves show that there has been a monetary transaction between the parties and there was liability for the accused to the complainant. Last trace of doubt, if any on this aspect is sought to be set at rest by the complainant by the proof of Ext.P5 which is not disputed at all. This, therefore, is an eminently fit case where the presumption under Section 139 of the N.I. Act must come into play . The onus must switch to the accused to discharge his burden. 25. The learned counsel for the accused laboriously contends that there has been an inconsistency/incongruity between the precise nature of the liability averred in the complaint and the nature of liability which was sought to be CRRP.1186/2005 & connected cases -21- proved by evidence in the course of trial. In the notice and in the complaint, it was averred that an amount of Rs.20 lakhs had been borrowed by the accused from the