IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.Rev.Pet.No. 4628 of 2006(C) ------------------------------------------- CRA.179/2005 of SESSIONS COURT, KALPETTA ST.5092/2003 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------- C.K. MANOJ, S/O. SREEDHARAN, CHEENIKUZHI VEEDU, PALATHU, CHEERAL AMSOM, S. BATHERY. BY ADV. SRI.S.M.PRASANTH DR.K.BALAKRISHNAN RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT: ------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RADHAKRISHNAN, S/O. RAVUNNY NAIR, THIYARATHODI (H), MOOKUTHIKUNNU, CHEERAL, S.BATHERY. PUBLIC PROSECUTOR SRI.M.P.SREEKRISHNAN FOR R2 SRI.V.ARUN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- CRL. R.P.No. 4628 OF 2006 --------------------------------- Dated this the 20th day of November, 2008 ORDER This revision is preferred against the judgment in Crl. A. 179/2005 of the Sessions Judge, Wayanad. The said appeal was preferred against the conviction and sentence passed in S.T. 5092/03 of Judicial First Class Magistrate –I, Sulthan Bethery. The trial court convicted the accused and sentenced him to undergo S.I for three months and pay a compensation of Rs. 76,000/- under Section 357(3) of Criminal Procedure Code with the usual default sentence. In appeal the learned Sessions Judge retained the compensation but modified the sentence and imprisonment to that of one day. It is against that decision the revision petitioner has come up in appeal. 2. Heard the counsel for both sides. The learned counsel for the revision petitioner strongly contends that in a case of this nature it has to be understood that the slightest evidence adduced by the accused would be sufficient to rebut the presumptions and also the preponderance of probability of the case. He had relied on the decision of the apex court reported in Narayana Menon v. Crl.R.P. No. 4628/2006 -2- State of Kerala [2006(3) 404 (SC)] . In the said decision, the apex court held that “Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. It was for the appellant only to discharge initial onus of proof. He was not necessarily required to disprove the prosecution case.” Ultimately it was a matter relating to appreciation of evidence. In this case it is submitted by the complainant that on 3.1.2003, the accused had borrowed a sum of Rs. 76,000/- and towards discharge of the liability, had issued a cheque on 3.2.2003, which when presented for encashment on 19.6.2003 was returned with an endorsement of “insufficiency of funds”. Thereafter statutory notice was issued and the amount was not paid. Then the criminal prosecution initiated. 3. The contention of the accused appears to be that he had taken a contract from the complainant with respect to the construction of a residential house and it was in that process he had handed over a blank signed cheque which had been utilized for the purpose of filing the case. The learned counsel very strongly contents before me that the evidence of DW1 and DW2 coupled with Ext. D1 is sufficient to rebut the presumption and non suit the Crl.R.P. No. 4628/2006 -3- complainant. Ext. D1 is an agreement entered into between the complainant and the accused on 6.10.2003 which admittedly is after the launching of the prosecution by the complainant. The learned counsel had made available before me for perusal a copy of the agreement which would show that what was discussed or decided to be settled was with respect to the house construction. There is absolutely no reference to Ext. P1 cheque. If really Ext. P1 cheque had been issued with regard to the house construction necessarily it should have been the subject matter for discussion especially in the light of the launching of the prosecution at the time of execution of Ext. D1 agreement. The evidence of DW1 and DW2 would also show that what was discussed therein was with respect to the construction process of the building. The learned appellate judge had referred to the portion of the evidence of DW1 wherein he admitted that there was no discussion regarding any matter other than the one mentioned in Ext. D1. Even if it is not so, I would like to emphasis that the non-mention of anything about Ext. P1, in Ext. D1 agreement would positively indicate that Ext. P1 was not a subject matter of settlement between the parties when Ext. D1 was executed. The mere fact that, a person had Crl.R.P. No. 4628/2006 -4- agreed to construct a house for the other and there was some dispute, it is not sufficient to hold that the accused is able to rebut the presumption which is available under the provisions of the N.I. Act. The courts below had weighed the evidence of PW1, DWs. 1 and 2 and the documentary evidence and had arrived at a decision that the evidence of PW1 is more reliable and that is why they had accepted the same and discarded the evidence of DWs. 1 and 2. Therefore I find that the courts below had not committed any error which requires correction at the hands of the revisional court. It is also to be remembered that in spite of a notice received the accused did not send even a reply controverting the allegations made in the notice. Therefore I do not propose to interfere with the finding of the court below. So far as the sentence is concerned, I am inclined to modify the sentence by reducing the sentence of imprisonment for one day that is till the rising of the court and convert the compensation to fine. In the result, the Criminal Revision Petition is disposed of as follows: 1. Finding of guilt under section 138 is sustained. 2. The revision petitioner is sentenced to undergo Simple Crl.R.P. No. 4628/2006 -5- Imprisonment for one day, that is till the rising of the court and pay fine of Rs. 76,000/- which on realisation shall be disbursed to the complaint and in default of payment of fine, the revision petitioner shall undergo Simple Imprisonment for a period of six weeks. 3. The revision petitioner shall present himself before the trial court to receive the sentence and pay the fine on 12.2.2009, failing which the trial court shall execute the sentence. If any amount is deposited that can be treated as part of fine and it can be disbursed to the complainant on proper application. The Criminal Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm