IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 Crl.Rev.Pet.No. 1220 of 2003() --------------------------------------------- CRA.97/1999 of II ADDL.SESSIONS COURT, KOLLAM CC.290/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .............................................. REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------- C.V.RAJAN, SHEEJA BHAVAN, ELAMAD MURI, ELAMADU VILLAGE, KOLLAM DISTRICT. BY ADV. MR.B.MOHAN LAL RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------- 1.VASUDEVAN PILLAI, S/O.NARAYANAN PILLAI, RENJITH BHAVAN, KOTTUKKAL MURI, KOTTUKKAL VILLAGE, ANCHAL, KOLLAM DISTRICT. 2.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR.RAJESH NAIR FOR R1 MR.SYAM SUNDER FOR R1 PUBLIC PROSECUTOR MR.P.A. SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------- Crl.R.P.No.1220 of 2003 --------------------------- Dated this the 12th day of July, 2010 O R D E R Petitioner is the accused in CC No.290/1996 of the Judicial First Class Magistrate Court-II, Kattarakkara was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions Court, Kollam in Crl.Appeal No.97/1999. Learned Sessions Judge re-appreciation of evidence confirmed the conviction and modified the sentence to Simple Imprisonment for one month and compensation of Rs.30,000/-. The revision is filed under challenging the conviction and sentence. Learned counsel appearing for the petitioner argued that the courts below did not properly appreciate the evidence and the burden is that the first respondent/complainant to establish that Ext.p1 cheque was issued by the petitioner towards discharge of an existing debt or liability and evidence of PW1 is contradicted by the evidence of PW3, who was examined to prove the original transaction and in any case there was no valid notice served on the petitioner as provided under Section 138(b) of Negotiable Crl.R.P.No.1220 of 2003 2 Instruments Act as the notice was returned with an endorsement procured by influencing the Postman and when the Postman was not examined, Courts below were not justified in finding that there was a valid notice. It is the case of the first respondent that petitioner borrowed Rs.30,000/- from him before 20.12.1995 and towards repayment that amount Ext.P1 cheque was issued, drawn in his account maintained in Service Co-operative Bank, Ilamadu and when the cheque was presented for encashment, it was dishonoured for insufficient funds and inspite of registered notice sent to the first respondent in the correct address petitioner refused to receive the same and it was returned unclaimed and he failed to pay the amount and thereby committed the offence. Petitioner has not disputed the fact that Ext.P1 cheque was issued in the account maintained by him. His case is that he did not issue Ext.P1 cheque and there has been no transaction with the first respondent and he has no liability to be discharged and Ext.P1 cheque was not issued in discharge of any debt or liability and therefore, no offence under Section 138 of the Negotiable Instrument Act was committed. Crl.R.P.No.1220 of 2003 3 The first respondent was examined as PW1 and the witness who was present at the time of the original transaction was examined as PW3. The learned counsel for the petitioner argued that according to PW1 transaction was on 20.12 1995 and there was no transaction earlier to that date and the evidence of PW3 is that transaction was one month prior to 20.12.1995 and in such circumstances the evidence of PW1 is disproved for PW3. True, when PW1 was cross examined he deposed that there was no transaction before 20.12.1995. But the said mistake was corrected in re-examination and PW1 deposed that the transaction was not on 20.12.1995 but prior to 20.12.1995. In the light of that evidence, it cannot be said that evidence of PW1 was contradicted by PW3. The evidence of PWs1 and 3 establish that petitioner borrowed a sum of Rs.30,000/- from first respondent and towards its repayment he issued Ext.P1 cheque. Both PWs1 and 3 deposed that Ext.P1 cheque was written and signed in their presence by the petitioner and petitioner handed over the cheque to the first respondent. The argument of the learned counsel is that the handwriting and signature in Ext.P1 are not proved to be that of the petitioner. It was argued that Crl.R.P.No.1220 of 2003 4 Ext.P1 cheque was sent to the Forensic Scientific Laboratory for comparing the signature with the admitted signature and a report was forwarded by Assistant Director Forensic Laboratory to the effect that on comparing the handwriting and signature, no conclusion could be expressed on the signature and therefore, it should have been found that the handwriting and signature in Ext.P1 are not that of the petitioner. The report of the expert was not marked. The report does not show that on comparing the handwriting and signature in Ext.P1 with the admitted handwriting and signature the expert found that the signature and handwriting are not of the same person. On the other hand, the report only shows that the standard of writings are not writings made normally and without the necessary standard writings he cannot express any opinion and inspite of the request for necessary standard writing, it was not furnished. Petitioner had not taken any steps to furnish the necessary writings and signature as sought for by the expert. In such circumstances, based on that report, which is not marked, Petitioner cannot argue that the handwriting and signature in Ext.P1 are not that of the petitioner. On the other hand, evidence of PWs1 and 3 Crl.R.P.No.1220 of 2003 5 establish that the handwriting and signature seen in Ext.P1 is that of the petitioner. It is pertinent to note that, when PW1 was cross examined it was suggested to him that petitioner is not an educated person. The handwriting and signature of the petitioner seen not only in Ext.P1, but his Vakkalath and other records produced before the court especially his signatures are in English. If falsifies the case that petitioner is not educated. Petitioner has no explanation whatsoever, as to how first respondent could get the cheque leaf issued to the petitioner by Service Co-operative Bank in his account, if it was not issued by the petitioner as deposed by PWs1 and 3. In the light of the evidence on record, courts below rightly found that Ext.P1 cheque was issued by the petitioner towards discharge of the existing debt or liability. Though learned counsel argued that there was no notice under Section 138 (b) of the Negotiable Instruments Act, original notice with the postal receipt and post acknowledgment returned with the endorsement establish that first respondent sent a registered notice in the correct address of the petitioner demanding the amount covered by the dishonoured cheque by Crl.R.P.No.1220 of 2003 6 registered post and intimation of the notice was given to the petitioner and he did not receive the same. Therefore, it was returned unclaimed. Petitioner has no case that he did not receive the intimation. The Postman was not examined by the petitioner to show that the endorsement in the original notice that intimation was given to the petitioner and petitioner did not serve the notice is not correct. In the absence of contrary evidence the endorsement made by the Postman can only be taken as done properly and regularly in discharge of his duty. If that be so, finding of the courts below that there was proper notice under Section 138(b) of Negotiable Instruments Act is also perfectly correct. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. Then the only question is regarding the sentence, Ext.P1 cheque is for Rs.30,000/-. Considering the facts and circumstances of the case interest of justice will be met if the sentence is modified to imprisonment till raising of court and a compensation of Rs.35,000/- and in default simple Imprisonment for two months. Crl.R.P.No.1220 of 2003 7 Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. In supersession of the sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge, petitioner is sentenced to Imprisonment till raising of the court and a compensation of Rs.35,000/- to be paid to the first respondent under Section 357(3) of the Code of Criminal Procedure and in default simple Imprisonment for two months. Petitioner is directed to appear before Judicial First Class Magistrate Court-II, Kottarakkara on 11.8.2010. The Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE pm