IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH OCTOBER, 2009 / 4TH KARTHIKA ,1931 Crl.Rev.Pet.No. 1442 of 2001 ( CRA.206/1999 of II ADDL. SESSIONS COURT, PALAKKAD CC.42/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD) .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- C.P.RAJAN, S/O.KUTTAN, RESIDING AT KANHIRAPUZHA, MANNARAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON RESPONDENTS/NOT PARTY/RESPONDENT/NOT PARTY/COMPLAINANT: ------------------------------------------------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.ARUMUGHAM, S/O.APPU KURUKKAL, RESIDING AT PALLIKULAM, PIRAYIRI AMSOM, PALAKKAD TALUK. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR FOR R2 SMT.BINDUMOL JOSEPH FOR R2 BY PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN FOR R1. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No.1442 of 2001 - A --------------------------------------------- Dated this the 26th day of October, 2009 O R D E R In a proceedings for prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'), the revision petitioner, who is the sole accused therein, was convicted and sentenced, which was confirmed in appeal preferred by the accused. Thus, in this revision petition, he challenges the concurrent finding of the courts below and the conviction and sentence imposed thereon. 2. The revision petitioner was prosecuted for the offence punishable under Section 138 of the N.I.Act on the allegation that he borrowed a sum of Rs.1,15,000/- from the complainant agreeing to repay the same with interest and when the amount was demanded back, the accused issued a cheque dated 26.6.1996 for a sum of Rs.1,15,000/- and the cheque, when presented for encashment, was dishonoured due CRRP`NO.1442 OF 2001 :-2-: to insufficiency of fund in the account maintained by the accused. Consequently, a lawyer notice was sent informing the accused regarding the return of the cheque and also demanding him to pay the amount covered by the dishonoured cheque. 3. As there was no reply and the amount was not paid, the complainant approached the Judicial First Class Magistrate Court-I, Palakkad, based upon which cognisance was taken and instituted C.C.No.42 of 1997 for the offence punishable under Section 138 of the N.I.Act. During the trial, Pws.1 to 3 were examined on the side of the complainant and Exts.P1 to P5 were marked as documentary evidences on the side of the prosecution. From the side of the defence, DW1 was examined and produced Ext.D1 ledger extract of the account of the complainant. Finally, the trial court found that the accused is guilty of the offence under Section 138 of the N.I.Act and accordingly, he is sentenced to undergo simple CRRP`NO.1442 OF 2001 :-3-: imprisonment for six months and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for two months. It was also ordered that if the fine amount was collected, the amount would be given to PW1 as compensation under Section 357 of the Code of Criminal Procedure. Though an appeal was preferred by the accused before the Sessions Court, Palakkad by judgment dated 22.9.2001 in Crl.A.No.206/1999, the court of Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence of the trial court. It is the above judgments of the courts below, challenged in this revision petition by the accused. 4. Learned counsel appearing for the revision petitioner submitted that the complainant has miserably failed to establish that Ext.P1 cheque was issued for any consideration and therefore, no offence under Section 138 is attracted. In support of the above contention, the learned counsel took me through the deposition of PW1. PW1, CRRP`NO.1442 OF 2001 :-4-: during his chief examination, stated in par with the allegation raised in the complaint. During the cross examination, he had stated that the accused was residing 50 Kms. away from the place of the complainant and the complainant did not know the address, the place of residence, the shop, if any, of the accused. Thus, according to the learned counsel, the accused is a totally strange person to the complainant and therefore, his evidence and claim cannot be believed. It is also submitted by the learned counsel that in the absence of any acquaintance with the accused, nobody can believe that the complainant had given such amount to the accused, as claimed by the complainant. It is also argued that at the relevant time, the complainant was not financially sound to part with such huge amount and such facts are more clear from the evidence. Thus, according to the learned counsel, the lower appellate court as well as the trial court miserably failed to consider the above aspect and came into the wrong conclusion that the CRRP`NO.1442 OF 2001 :-5-: accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. 5. On the other hand, Sri.O.Ramachandran Nambiar, learned Senior counsel appearing for the respondent/ complainant submitted that the complainant has already deposed before the trial court that he had acquaintance with the accused for about five years as the accused was residing adjacent to the brother-in-law of the accused with whom the complainant has got acquaintance. It is also pointed out that the accused has not questioned the contents of Ext.P1 cheque and he has no case that he had not executed the cheque in question. Thus, the learned counsel submits that there is a concurrent finding by the courts below against the accused and hence, no interference of this Court is warranted. 6. I have carefully considered the contentions advanced by the learned counsels and also perused the materials on record. The trial court as well as the appellate CRRP`NO.1442 OF 2001 :-6-: court have rightly found that the revision petitioner/accused has not denied the issuance of the cheque and no convincing explanation was offered by the accused as to how Ext.P1 cheque reached at the hands of the complainant. The only case put forward by the accused is that the complainant has no acquaintance with the accused and the complainant has no sufficient fund at the time of the alleged transaction so as to give such huge amount to the accused as alleged by the complainant. Section 139 of the N.I.Act is mandate in nature, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, on any debt or other liability. The settled legal position shows that the above presumption is not an irrebuttable one. The accused, who is charged with an offence under Section 138, can rebut the presumption by making out at least a probable case. In the present case, absolutely no such case was made out by the accused even in the nature of a suggestion CRRP`NO.1442 OF 2001 :-7-: as to how the cheque in question reached at the hands of the complainant. According to me, when a court is confronted with the question as to how the cheque reached in the hands of the complainant, the court has to firstly consider the explanation of the accused regarding that aspect and in order to take a correct decision on that plea, it is for the court to consider the other relevant inputs considering the facts and circumstances involved in the case. In the absence of any suggestion or believable story as to how the cheque in question reached at the hands of the complainant, there is no scope of any other consideration. In the present case, the revision petitioner/accused has no case that he did not execute the cheque. He is not disputing the contents of Ext.P1 cheque, regarding the handwriting and the amount shown therein. When PW1 was examined, he had specifically stated before the trial court that he had acquaintance with the accused for five or more years as the complainant had seen the CRRP`NO.1442 OF 2001 :-8-: accused along with his brother-in-law. He had also given an account regarding the transaction. Nothing brought on record to disbelieve those versions of the complainant. In the absence of any suggestion or any material or evidence to rebut the presumption, I cannot find fault with the finding arrived on by the trial court as well as the appellate court, especially on the basis of Section 139 of the N.I.Act. No case is made out to arrive at a different finding and to take a different view that from the trial court as well as the appellate court. Hence, the findings of the courts below and the conviction are confirmed. 7. The learned counsel for the revision petitioner submits that the accused is a Government employee and if he is sentenced to long term imprisonment, it is likely to adversely affect his career and he is prepared to pay a substantial amount to the complainant and offered a sum of Rs.1 lakh to the respondent-complainant. Learned counsel for the respondent/complainant submitted that the CRRP`NO.1442 OF 2001 :-9-: complainant is only interested in getting the amount and he is unconcerned with the sentence. 8. Under the above circumstances, I am of the view that while confirming the conviction, some modification can be made with respect to the sentence provided the complainant is suitably compensated. Accordingly, the conviction of the revision petitioner under Section 138 of the N.I.Act is confirmed and he is sentenced till the rising of the court and as I am proposed to direct him to pay compensation, the order of the court below directing him to pay fine is set aside and he is directed to pay a sum of Rs.1 lakh to the complainant under Section 357(3) of the Code of Criminal Procedure,1973 failing which he is directed to undergo simple imprisonment for three months. The bail bond, if any, executed by the petitioner is cancelled. The petitioner is directed to appear before the court, which convicted him, on 29.12.2009 and in case, no sitting on that date on the next sitting date of that court to receive the CRRP`NO.1442 OF 2001 :-10-: sentence on which date, he shall pay the compensation as fixed above to the complainant to the satisfaction of the convicting court. In case of default in appearing before the court below and paying the amount as directed, the said court is free to take coercive steps, to procure the presence of the petitioner/accused and to execute the sentence. This Criminal Revision Petition is disposed of as above. V.K.Mohanan, Judge MBS/ CRRP`NO.1442 OF 2001 :-11-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO.1442 OF 2001 -------------------------------------------- O R D E R CRRP`NO.1442 OF 2001 :-12-: DATED: 26-10-2009