IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 865 of 2002(C) -------------------------------------- C.C.NO.914/1998 OF THE JUDICIAL FIRST CLASS MAGISTRATE, CHAVAKKAD. CRIMINAL APPEAL NO.363/2000 OF THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR. REVN. PETITIONER/APPELLANT/ACCUSED : ----------------------------------------------------- DAVIS S/O.VADAKKETHALA OUTHUDAL POULOSE, NEAR CHURCH, P.O.KANDASSANKADAVU, VADANAPPILLY, THRISSUR DISTRICT BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) RESPONDENTS/RESPONDENT/COMPLAINANT : -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SANKARAN S/O.THACHAPPALLY KESAVAN, KUNDALIYOOR DESOM, ENGANDIYUR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT ADV. SRI.P.VIJAYA BHANU FOR R2 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING : THOMAS P. JOSEPH, J. ----------------------------- CRL.R.P.No. 865 of 2002 ----------------------------------- Dated this the12th day of December, 2008 O R D E R Against concurrent finding of fact entered by the courts below, accused has come up in revision. 2. Heard both sides. 3. Points for consideration are; (1) whether revision petitioner issued the cheques for the discharge of legally enforcible debt/liability? (2) whether sentence is excessive? 4. Perused the records. 5. Point No. 1: According to the second respondent, he entered into an agreement with the revision petitioner for purchase of the 2/3rd share of the revision petitioner in 17 ½ cents of land in Survey No. 9 of Aranattukara Village as per agreement dated 21/10/1997 fixing the total consideration at Rs.8,00,000/-, he gave Rs.1,00,000/- as advance towards sale consideration on 21/10/1997 and on the date of agreement, paid another sum of Rs.3,00,000/- towards the sale CRL.R.P.No. 865 /2002 2 consideration. Agreement for the sale did not fructify and the revision petitioner expressed his inability to execute the sale deed. He agreed to return the sum of Rs.4,00,000/- to the second respondent and towards payment of that, issued Exhibits P1 and P2, cheques dated 6/08/1998 and 12/08/1998, respectively. Second respondent presented those cheques for encashment, but the same were dishonoured for insufficiency of funds. He issued notice intimating the dishonour and demanding payment of the amount but the revision petitioner did not pay the amount. Revision petitioner sent Exhibit P7 reply, according to the second respondent, raising untenable contentions. Second respondent gave evidence as PW1. Dishonour of the cheques for insufficiency of funds is proved by Exhibits P3 and P4 and the evidence of PW2, Manager of the drawee bank. The case of the revision petitioner is that second respondent is a money lender by profession and on 21/10/1997, he had borrowed Rs.1,00,000/- and given signed blank cheques as security. He used to remit the interest in the account of wife of the second respondent. There was difference of opinion over payment of interest and that provoked the second CRL.R.P.No. 865 /2002 3 respondent to fill up the signed blank cheques and present the same for encashment. On behalf of revision petitioner, Exhibit D1 series, receipts for deposit of total sum of Rs.2,000/- in the account of wife of the second respondent was proved. It is contended by the learned counsel that due execution of the cheques is not proved. Counsel also contended that at any rate, it is premature to dispose of this revision petition at this stage since the decree obtained by second respondent in the civil suit is under challenge in R.F.A No.89/2005 and that there is possibility of that appeal being allowed in favour of revision petitioner in which case, that decision is binding on the Criminal Court. Counsel for the second respondent contended that the decision of the civil court cannot bind the criminal court and that due execution of the cheques is proved. 6. It has been consistently held that decision of the Civil Court is not binding on the criminal court though judgment of the civil court can be looked into as provided under Sections 40 to 43 of the Indian Evidence Act. Moreover, as things now stand, the civil court has decreed the suit in favour of the second respondent and it is not CRL.R.P.No. 865 /2002 4 necessary to await the decision in the Regular First Appeal. This revision petition being of the year 2002 cannot be kept pending and has to be disposed of on the evidence on hand. 7. The second respondent did not produce the agreement said to be executed between him and revision petitioner on 22/10/1997. According to counsel for the revision petitioner, this court has to withdraw an adverse inference against the revision petitioner on account of the non production. But it is to be borne in mind that in the Criminal prosecution, what is required to be pleaded and proved by the payee or holder in due course is the execution of the cheque for the discharge of legally enforcible debt/liability and its dishonoured for insufficiency of funds. Hence, non production of the agreement by itself cannot be fatal, if the case of the second respondent is otherwise acceptable. It is not in dispute that Exhibits P1 and P2 were executed by the revision petitioner. In that situation, revision petitioner had to show the circumstances under which those signed cheques, according to him in blank condition, reached the hands of the second respondent. True, he has a case. According to him, he took a loan of Rs.1,00,000/- CRL.R.P.No. 865 /2002 5 from the second respondent on 21/10/1997 and as security, gave signed blank cheques. It is to support that contention that Exhibit D1 series are produced. It is admitted by the second respondent as PW1 that revision petitioner has deposited Rs.2,000/- covered by Exhibit D1 series in the account of his wife. Second respondent has an explanation that it was as regards another loan which the revision petitioner had taken from his wife. He claimed that at time when his wife was about to deposit certain amount in her account, revision petitioner wanted it by way of loan promising to pay the amount with interest in her account and accordingly, that amount was lent to him and he paid some amount as per Exhibit D1 series. Evidence of PW2 would show that the cheque book containing Exhibits P1 and P2 was issued to the revision petitioner only on 3/06/1998, while going by Exhibit D1 series, payment started on 30/04/1998. If that be so, it is difficult to believe the version of the revision petitioner that on 21/10/1997 he had availed loan from second respondent and as security, Exhibits P1 and P2 (which were issued to revision petitioner only on 3/01/1998) were given to the second respondent on 21/10/1997. The second respondent CRL.R.P.No. 865 /2002 6 and wife are retired teachers and according to the second respondent, the sum of Rs.4,00,000/- he paid to revision petitioner is part of his pensionary benefits. 8. I have gone through evidence adduced by both sides and I am satisfied that the courts below rightly placed reliance on the evidence let in by second respondent and held that revision petitioner issued the cheques for repayment of Rs.4,00,000/- towards the sale consideration. Revision petitioner has also not rebutted the presumption appearing against him under Section 139 of the Act. In the circumstances conviction of the revision petitioner requires no interference. 9. Point No.2: Having found as above, next question is whether sentence awarded to the revision petitioner is excessive. Learned counsel for revision petitioner requested that sentence of imprisonment may be avoided and prayed for six months' time to pay off the amount. Counsel for the second respondent is agreeable to the revision petitioner being given that much time to pay off the amount. Object of CRL.R.P.No. 865 /2002 7 introducing Section 138 in the Act is to give credibility to cheque transactions. Ultimate object is not to keep the offender behind the bars. Revision petitioner has expressed his willingness to discharge the liability, if given six months' time. In the circumstances stated above, I am inclined to accept the request. Substantive sentence is therefore modified as Simple Imprisonment till rising of the court. Revision petitioners has to pay Rs.4,00,000/- as compensation to the second respondent within a period of six months. Resultantly, this revision petition is allowed in part in the following lines. i) substantive sentence imposed on the revision petitioner is modified as simple imprisonment till rising of the court. ii)Revision petitioner is directed to deposit in the trial court for payment to the second respondent Rs.4,00,000/-(Rupees Four Lakhs Only) by way of compensation within six months from this day failing which the revision petitioner shall undergo Simple Imprisonment for three months. iii)It will be sufficient compliance of the direction contained CRL.R.P.No. 865 /2002 8 in Clause (ii) above, if the revision petitioner paid the amount to the second respondent through his counsel in the trial court and the second respondent files statement in the trial court through his counsel within the said period of six months acknowledging receipt of the amount. iv) If the amount of compensation fixed hereby is paid or realised in execution of the decree obtained by the second respondent within the said period of six months, that amount will be adjusted in the compensation payable. Revision petitioner shall surrender in the trial court on 16/06/2009 to receive the sentence. Bail bond is cancelled. Criminal Miscellaneous Petition No. 4847 of 2002 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm