IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.Rev.Pet.No. 968 of 2002() ------------------------------------------ CRA.245/2000 of ADDL.SESSIONS COURT, KOTTAYAM CC.748/1995 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- T.A. ANSARI, S/O. ABDUL KAREEM THAZHE VEETIL, KUTTAMPUZHA, THIRUVALLA. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: -------------------------- 1. N.K. MOIDEEN, REPRESENTED BY POWER OF ATTORNEY HOLDER, M.M. MUSTHAFA, KHALEEL MANZIL, S.H. MOUNT P.O., KOTTAYAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.PMM.NAJEEB KHAN R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.5277/2002 IN CRRP. NO.968/2002 DISMISSED 18/05/2010 SD/- M.SASIDHARAN NAMBIAR, JUDGE TRUE COPY P.A. TO JUDGE tss M.SASIDHARAN NAMBIAR, J. --------------------------- Crl. R.P. No. 968 OF 2002 -------------------------- Dated this the 18th day of May, 2010 O R D E R The petitioner was convicted for the offence under Section 138 of Negotiable Instruments Act and sentenced to rigorous imprisonment for six months in addition to a fine of Rs. 1,10,000/- with a direction to pay Rs.1,00,000/- out of the fine amount, to the first respondent/complainant as compensation under Section 357 (3) of the Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl. Appeal No.245 of 2000. The learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner argued that Ext.P2 cheque was not dishonoured for want of sufficient funds alone but on the ground that signature differs and therefore even if there was sufficient amount, the cheque could not have been encashed and therefore offence under Section 138 of the Negotiable Instruments Act is not attracted. The learned counsel then argued that there is no evidence to prove that the signature Crl.R.P. No.968/02 2 seen in Ext.P2 is that of the petitioner and in any case there is no evidence to prove that the amount shown in the cheque was due from the petitioner to the first respondent on the date of issuance of the cheque, as found by the courts below. It was argued that the evidence of PW1, the accountant, do not establish that they are maintaining a proper account and as per the account Rs.1,00,000/- was due on the date of issuance of the cheque and therefore it cannot be said that Ext.P2 cheque was issued towards discharge of an existing legal liability and hence the conviction is bad. Learned counsel finally submitted that in any case sentence is harsh and it may be modified. 3. Learned counsel appearing for the first respondent pointed out that the defence set up by the petitioner is different from the defence sought to be proved by examining DW1, the brother of the petitioner. The learned counsel pointed out that in Ext.P9, the written statement filed by the petitioner before Sub Court, Thiruvalla in a suit instituted by one Ibrahimkutty claiming Rs.40,000/- due from the petitioner, shows that the dishonoured cheque was signed by the petitioner himself and allegedly handed over to his brother DW1 and Crl.R.P. No.968/02 3 therefore the petitioner cannot dispute the signature. It was also pointed out that the learned Chief Judicial Magistrate compared the signature of the petitioner seen in his account opening form and found that though the signature was different, the evidence establish that it is the signature of the petitioner and the learned Sessions Judge also confirmed that factual finding and the said findings are not perverse warranting reappreciation of evidence. It was also argued that the suit was not instituted by the first respondent but by another person and it is in that suit petitioner filed a written statement admitting the signature in the dishonoured cheque in this case and therefore it can only be found that the signature seen in Ext.P2 is that of the petitioner. Learned counsel also argued that as rightly appreciated by the courts below, evidence of Pws 1 and 2 establish that petitioner used to purchase vegetables from the shop of the first respondent and towards the amount due Ext.P2 cheque was issued in the presence of Pws 1 and 2 and therefore Ext.P2 cheque was issued towards the discharge of the existing legal liability and as it was dishonoured for want of sufficient funds, commission of an offence under Section 138 of Negotiable Instruments Act is Crl.R.P. No.968/02 4 established. Learned counsel argued that there is no reason to interfere with the sentence. 4. Though Ext.P2 cheque was dishonoured on the ground that signature differs, it was also dishonoured for want of sufficient funds. It is not disputed that on the date when the cheque was dishonoured there was no sufficient amount in the account maintained by the petitioner to honour Ext.P2 cheque. Though the signature seen in Ext.P2 was different from the sample signature furnished by the petitioner and therefore it was noted in the dishonoured memo, petitioner in Ext.P9 written statement unambiguously contended that he had affixed his signature in the cheque and that cheque was handed over to his brother, who was examined as DW1, and based on that cheque first respondent has lodged a complaint before Chief Judicial Magistrate alleging that an offence under Section 138 of Negotiable Instruments Act was committed after serving a notice on the petitioner demanding the amount covered by the cheque. Therefore as rightly found by the courts below there cannot be any dispute with regard to the identity of the cheque referred to in Ext.P9 written statement. It is the cheque involved in this case. Ext.P9 Crl.R.P. No.968/02 5 establishes that petitioner had signed the cheque. Therefore, the finding of the courts below that it is the signature of the petitioner seen in Ext.P2 cheque is perfectly correct. 5. Though the learned counsel appearing for the petitioner argued that there is no evidence to prove that the existing liability was Rs.1,00,000/- on the date of issuance of the cheque, on a proper appreciation of evidence learned Chief Judicial Magistrate and the learned Sessions Judge found that Ext.P2 cheque was issued towards discharge of the amount due by the petitioner to the first respondent towards purchase of vegetables. The question is whether that finding is perverse warranting reappreciation of evidence. True, evidence of Pws 1 and 2 establish that no proper account was maintained to show the exact amount due. But the evidence establish that petitioner used to purchase vegetables on credit basis and at that time the amount due is used to be entered in a white paper and used to be handed over to the petitioner. Evidence also establish that Ext.P2 cheque was issued towards the discharge of the then existed liability. Though the petitioner has a case that the cheque was handed over along with a singed white Crl.R.P. No.968/02 6 paper to DW1 his brother, the suggestion made to PW1 was that the cheque was handed over as demanded by the first respondent to show that he had the means to construct a building. It is not the same defence sought to be proved by the evidence of DW1. When the entire evidence is appreciated, I find no reason to differ with the factual findings of the courts below. The evidence establish that petitioner issued Ext.P2 cheque towards discharge of the existing liability and it was dishonoured for want of sufficient funds and in spite of demand in writing, petitioner did not pay the amount. The evidence establish that first respondent has lodged the complaint within the statutory period. Hence conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act is perfectly legal and proper and warrants no interference. 6. Then the question is regarding the sentence. Sentence awarded is rigorous imprisonment for six months in addition to a fine of Rs.1,10,000/-. Ext.P2 cheque is for Rs.1,00,000/-. Interest of justice will be met if the sentence is modified to imprisonment till rising of court and compensation of Rs.1,20,000/- to the first respondent and in default simple imprisonment for three months. Crl.R.P. No.968/02 7 Revision is partly allowed. Conviction for the offence under Section 138 of Negotiable Instruments Act is confirmed. Petitioner is sentenced to imprisonment till rising of the court and a compensation of Rs.1,20,000/- and in default simple imprisonment for three months. If the petitioner has deposited any amount before the learned Magistrate, as directed by this Court at that time of admitting the appeal, he need only deposit the balance amount. Petitioner is directed to appear before the learned Chief Judicial Magistrate on 28.6.2010. On the request of the learned counsel appearing for the petitioner, petitioner is permitted to pay the compensation directly to the first respondent/complainant and produce the receipt before the learned Magistrate and establish that compensation amount has been paid. M.SASIDHARAN NAMBIAR (Judge) vps Crl.R.P. No.968/02 8 Crl.R.P. No.968/02 9