IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 2868 of 2011() ------------------------------------ CRA.290/2009 of I ADDL. SESSIONS COURT, KOLLAM ST.91/2008 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- MAHALEKSHMI,W/O.SUBRAMANIAN,SHEEJA BHAVAN,CENTRAL BANK OF INDIA, KANNINMEL CHERRY, MARUTHADY PO,KOLLAM. BY ADV. SRI.BIJU .C. ABRAHAM RESPONDENT(S):RESPONDENTS.COMPLAINANT & STATE ------------------------------------------------------------------ 1. M/S.FASHION JEWELLERS AND EXPORTERS CHUNGATH BUILDINGS , MAIN ROAD,CHALAKUDY BRANCH OFFICE AT KOLLAM CHUNGATHU PRINCE JWELLERY, PONNAMMA CHAMBERS,REPRESENTED BY THE MANAGING PARTNER RAJIVE PAUL. PIN - 691 016. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2868 of 2011 ----------------------------------------------- Dated this the 2nd day of December, 2011 O R D E R Challenge in the revision is against the conviction of the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). Sentence imposed against the accused, as affirmed by the Sessions judge in appeal, is imprisonment till the rising of the court, with direction to pay compensation of Rs.56,500/- to the complainant with default term of simple imprisonment for one month. 2. Sufficient opportunity was not extended to the revision petitioner/accused to establish her defence, and in fact, there was Crl.R.P.No.2868 of 2011 :: 2 :: denial of fair trial in the case, inasmuch as an application moved by the accused for sending over the cheque to an expert for comparison with her admitted writings to substantiate her defence that all entries other than the signature made in the instrument were not by her hand was improperly turned down by the learned magistrate, is the challenge canvassed by the learned counsel to assail the conviction concurrently rendered by the two courts against the accused. The accused, it is submitted, has contended that the cheque in blank form with signature alone was given as a security for a transaction with another and that she had no transaction with the complainant, nor did she issue or hand over the cheque to the complainant. So much so, when Crl.R.P.No.2868 of 2011 :: 3 :: an application was moved for sending over the cheque to an expert and that too when the witness examined on behalf of the complainant asserted before the court that it was written in her handwriting, it should have been allowed and dismissal of that application has resulted in denial of opportunity to the accused to substantiate her defence, according to the learned counsel. 3. Going through the judgments rendered by the magistrate and the Sessions Judge, I am not persuaded to accept the ground of attack levelled against the conviction concurrently rendered against the accused by the counsel. Complainant is a business concern and the cheque was issued towards purchase of jewellery in connection with the marriage of the daughter Crl.R.P.No.2868 of 2011 :: 4 :: of the accused was its case. Admittedly, the cheque arose from the account maintained by the accused in a bank and it was dishonoured due to insufficiency of funds. Statutory notice issued intimating dishonour of the cheque and demand of the sum covered thereunder remained unresponded. The accused is shown to be an advocate clerk which would indicate that she is aware of the penal consequences arising from the dishonour of a cheque from an account maintained by her. Apart from tendering oral evidence by examining PW.1, the Managing Partner of the complainant firm, documentary materials were also tendered showing that there was purchase of gold ornaments by the accused and the amount as reflected in the cheque was outstanding towards such transaction from the complainant. When that Managing Partner was Crl.R.P.No.2868 of 2011 :: 5 :: examined, during the course of his cross- examination in answer to a suggestive question he gave an answer that the cheque was written and signed in his presence by the accused, was the basis for the application moved for examination of the cheque through an expert. Other than raising some suggestive questions when PW.1 was cross-examined, to substantiate the defence canvassed for the accused did not mount the box and examine herself providing an opportunity to the complainant to test the veracity of her defence. Vague suggestions and hunches without anything more, have no place in criminal trial. Merely because an application was moved for scrutiny of the cheque through an expert setting forth a defence that the writings in the cheque were Crl.R.P.No.2868 of 2011 :: 6 :: not in the hand of the accused, it does not follow that the defence so canvassed has got merit, nor that the raising of such defence would require calling for an opinion from an expert. After all, the opinion, if any, from the expert after scrutiny of a document would fall within the ambit of opinion evidence which it is open to the court to accept or refuse, having regard to the other materials tendered in the case. The trial magistrate, in the present case, on the materials produced, also having had an opportunity to record the testimony of PW.1, the Managing Partner of the firm, found the case of the complainant credible, trustworthy and convincing. Conclusion formed by the trial magistrate, after re-appreciation of the evidence, has Crl.R.P.No.2868 of 2011 :: 7 :: been approved by the Sessions Judge to sustain the finding of guilt rendered against the accused to uphold her conviction for the offence under Section 138 of the Act. I do not find any infirmity in the finding so entered by the court below turning down the request made by the accused for scrutiny of the cheque through an expert, where nothing more was let in to support her defence to impeach the execution of the cheque. 4. The learned counsel for the accused, at this stage, requested for some more time to pay the compensation, and thus, avoid the default term of imprisonment. Cheque involved in the case is dated 23.03.2006 and the sum covered by that instrument is Rs.56,500/-. That sum alone had been fixed as payable to Crl.R.P.No.2868 of 2011 :: 8 :: the complainant as compensation. When that be so, prima facie, there is no ground to grant extension of time. But, having regard to the submissions made by the learned counsel pointing the extenuating circumstances available in favour of the accused, I find, a short time, as indicated hereunder, can be granted to pay the amount so as to avoid the default term of imprisonment. 5. Affirming the conviction and sentence, petitioner is directed to appear before the magistrate on 15.02.2012 to serve out the imprisonment till the rising of the court, and also to report the payment of the compensation. The magistrate is directed to keep in abeyance the execution of the sentence till the date fixed as above to enable her to Crl.R.P.No.2868 of 2011 :: 9 :: pay the compensation within that period. In default of her appearance and non-payment of the compensation, the learned magistrate shall execute the sentence, taking appropriate steps, in accordance with law. Revision is disposed of as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.