IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Crl.Rev.Pet.No. 106 of 2008() ----------------------------- CRA.190/2007 of ADDL. SESSIONS COURT (ADHOC-I), KOZHIKODE ST.777/2005 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- C.ASHOKAN, AGED 46 YEARS, S/O.CHENDUKUTTY NAIR, CHERUPPARA HOUSE, PUNNASSERY P.O., NARIKUNNI, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENTS: RESPONDENTS/COMPLAINANTS ------------------------------------- 1. K.C.MANOJ KUMAR, S/O.DAMODARAN NAIR, AGED 39 YEARS, CHERUKKAL VEETIL, MAYANAD P.O., KOZHIKODE DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/01/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 106 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act. The cheque is for an amount of Rs.75,000/- It bears the date 22.4.2005. After the appellate modification of the sentence, the petitioner now faces the sentence of imprisonment till rising of Court. There is a further direction to pay the actual cheque amount of Rs.75,000/- as compensation under Section 357(3) Cr.P.C. and in default to undergo S.I. for a period of two months. 2. Signature in the cheque is admitted. That the cheque was handed over by the petitioner after affixing his signature to the complainant is also not disputed. Notice of demand, though duly received and acknowledged, did not evoke any response. After observing the statutory time table and formalities scrupulously, the complainant came to court. Crl.R.P.No. 106 of 2008 2 3. The complainant examined himself as PW1 and proved Exts.P1 to P3 series. The accused, in the course of trial, advanced a contention that the cheque was not issued by him to the complainant for the due discharge of any legally enforceable debt/liability, but according to him, the cheque was handed over as security as a blank signed cheque when another Asokan (petitioner is also one Asokan), DW1, had availed a loan from the complainant. No documentary evidence was adduced by the accused. He examined the said Asokan as DW1 on his side. 4. The courts below have considered this contention in detail. Primarily we have the oral evidence of PW1 about the circumstance under which Ext.P1 cheque, which is drawn on a cheque leaf issued to the petitioner by his bank with his signature admittedly affixed thereon, travelled from his possession to that of the complainant. The eloquent silence on the part of the petitioner after receiving the statutory notice of demand does knock the bottom of the theory advanced by the petitioner. If as a matter of fact the version of the petitioner were true, it is idle for any court to expect such inaction on Crl.R.P.No. 106 of 2008 3 the part of the petitioner. The only evidence available to dislodge the weight of evidence of PW1 is the oral evidence of DW1. Less said about the said evidence, the better. In the course of examination of PW1 attempts were made to make it appear that the petitioner C. (Cherupara) Asokan was not known to the complainant. The complainant asserted that he had dealings with the petitioner herein. The petitioner is that Asokan. The fact that the complainant did not describe the petitioner as Cherupara Asokan cannot, in the facts and circumstances, deliver any advantage to the petitioner. 5. I am at the third tier of criminal litigation and the revisional powers of superintendence and correction can be invoked only when the error committed in the appreciation of evidence is gross and perverse and such error in turn leads to miscarriage of justice. Such vice, I am unable to perceive, in the facts and circumstances of this case. The petitioner has the burden to rebut the presumption under Section 139 of the N.I. Act. He need not disprove the case of the complainant nor prove his case beyond reasonable doubt. But he has to prove his case atleast by the test of preponderances and Crl.R.P.No. 106 of 2008 4 possibilities. The materials do not measure up to that expected standard of proof. The assertions made in the course of examination of PW1 and the unsatisfactory oral evidence of DW1 is not certainly sufficient to prove the case of the accused or even to generate a reasonable doubt against the case of the complainant. 6. Leniency and indulgence to the maximum extent has already been shown to the petitioner. The complainant has been compelled by now to fight two rounds of legal battle and to wait from 22.4.2005 for the redressal of his grievances. He deserves to be compensated adequately. I find absolutely no merit in the prayer made for any long further time for making the payment. However, I am satisfied that the petitioner can be granted time till 29.2.2008 to make the payment and avoid default sentence. 7. This revision petition is accordingly dismissed, but with the observation that the petitioner shall have time till 29.2.2008 to raise and pay the amount and thus avoid the default sentence. The impugned sentence shall not be executed till that date. On or before 1.3.2008 the petitioner shall appear, and his sureties shall produce Crl.R.P.No. 106 of 2008 5 him, before the learned Magistrate for execution of the impugned sentence. (R. BASANT) Judge tm