IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Crl.Rev.Pet.No. 2423 of 2007() ------------------------------ CRA.452/2005 of SESSIONS COURT, MANJERI ST.156/2004 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVN. PETITIONER: (APPELLANT/ACCUSED) ------------------------------------- KODOMPETTA VASUDEVAN, S/O.LATE GOVINDAN NAIR, AGED 56 YEARS, GODOWN KEEPER, SECOND H.C., KERALA STATE WARE HOUSING CORPORATION, KARUVAMBRAM MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: (RESPONDENTS/COMPLAINANT AND STATE) ------------------------------------------------ 1. KODOMPETTA RADHAKRISHNAN, S/O.LATE GOVINDAN NAIR, DEEPIKA HOUSE, KARUVAMBRAM, MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, COCHIN-682 031. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.2423 of 2007 ---------------------------------------- Dated this the 29th day of January 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. After indulgent modification of the sentence by the Appellate court, the petitioner now faces a sentence of imprisonment till rising of court and there is a direction to pay an amount of Rs.40,000/- as compensation and in default to undergo S.I for a period of three months. 2. The cheque is for an amount of Rs.30,000/-. It bears the date 12/3/2004. The signature in the cheque is admitted. According to the complainant, the cheque was issued for the due discharge of a legally enforcible debt/liability. The cheque was dishonoured on the ground of insufficiency of funds. Notice of demand though duly received and acknowledged did not evoke any response. In the course of the trial, a contention was raised that the cheque was not handed over by the petitioner to the complainant for the discharge of any legally enforcible debt/ Crl.R.P.No.2423/07 2 liability. A specific contention was taken that the cheque was a blank signed cheque. It was handed over earlier by the petitioner to DW3 as security in a totally different financial transaction. That cheque was returned by DW3 to the petitioner when that transaction was closed. Blank cheque was available with the petitioner. The same was stolen from the possession of the petitioner by his nephew. The complainant must have come into possession of the cheque from the said nephew. After receiving the notice of demand dated 22/5/2004 and after initiation of the prosecution in this case, the petitioner had filed a complaint before the learned Magistrate on 02/09/2004 alleging commission of theft by the nephew of the petitioner. That complaint was forwarded to the police on 08/09/2004. Ext.D1 F.I.R was registered. That crime was investigated by DW4. He took the decision to refer the said crime as not true. 3. According to the complainant, the cheque was issued for the partial discharge of the liability under Ext.P1. DW1 is the Sub Inspector of Police, who was one of the mediators, who persuaded the petitioner and the complainant, his brother to enter into Ext.P1 agreement. Accused took up a contention that Crl.R.P.No.2423/07 3 the liability under Ext.P1 agreement had been discharged orally and DW2 another brother of the petitioner was examined to prove such oral discharge of the liability under Ext.P1 agreement. The petitioner also wanted to rely on Ext.D3, a copy of the petition filed by him before the Chief Minister dated 13/6/2005. Exts.D4 and D5 postal receipt and acknowledgment were relied on to show that Ext.D3 was sent and received by the Chief Minister. 4. Thus, the courts below had before them the evidence of the complainant as PW1 and Exts.P1 to P7 on his side. The evidence of DWs 1 to 4 and Exts.D1 to D5 were available on the side of the accused. 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. 4. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount Crl.R.P.No.2423/07 4 against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contentions which were raised before the courts below. First of all, it is contended that the execution of the cheque has not been proved. We have primarily the oral evidence of PW1 to prove the execution of the cheque. The execution of Ext.P1 agreement by the petitioner and the complainant is admitted. That shows that there was an allegation of destruction of the property of the complainant and the said dispute was settled by the petitioner agreeing to pay an amount of Rs.50,000/-. That agreement is dated 11/3/2004. The cheque also bears the date 11/3/2004 though below the signature of the petitioner, the petitioner has affixed the date 12/3/2004. Contention is strenuously raised that the execution of the cheque by the petitioner has not been proved. 5. In this context, I take note of the evidence of PW1. I take note of Ext.P1 agreement which convincingly probabilises the oral evidence of PW1 that Ext.P2 cheque was issued for the discharge of the liability under Ext.P1. The petitioner tries to pick holes in the case of PW1 by contending that the cheque bears the date 11/3/2004 at the place provided for putting the Crl.R.P.No.2423/07 5 date of the cheque. Below the signature of the cheque the date appears is 12/3/2004. Both courts have considered this circumstance. They took note of the fact that the different date appearing below the signature of the petitioner can only probabilise the genuineness of Ext.P2 cheque and not otherwise. Agreement was written on 11/3/2004. The cheque was also prepared on 11/3/2004. In that cheque, when the petitioner affixed the signature, he noted the date as 12/3/2004. This clearly shows that it was not a case where the date 11/3/2004 or 12/3/2004 in the cheque was entered by the complainant who was manufacturing a forged cheque by putting dates. On broad probabilities, the difference in the dates - 11/3/2004 and 12/3/2004 can only shows the honesty and genuineness of Ext.P2 cheque and not otherwise at all. 6. The learned counsel for the petitioner relies on the oral evidence of DWs 2 and 3 to contend that the liability under Ext.P1 cheque had already been paid and discharged. Nothing can be more improbable than that plea. The liability was created under Ext.P1. It is elementary and reasonable to assume that when such a liability created under Ext.P1 is discharged, parties Crl.R.P.No.2423/07 6 would have insisted on a written document to show discharge. The very convenient plea urged that Ext.P1 liability was discharged orally without any voucher and the support drawn from interested DWs 2 and 3 in support of such theory were, according to me, rightly rejected concurrently by the courts below. 7. To crown all these circumstances is the eloquent circumstance that the notice of demand did not evoke any response. It was duly received and acknowledged as can be seen from Ext.P7. There is no dispute on that aspect. The petitioner remains silent and inactive even after receiving Ext.P5 notice of demand. That is artificial, improbable and unnatural conduct. No reasonable human being with his head on his shoulders is likely to have remained silent and inactive on receipt of Ext.P5 notice, if he were in circumstances in which the petitioner claims to be when he received Ext.P5 notice. According to him, Ext.P1 liability had already been discharged but without voucher. According to him, the cheque was a blank signed cheque which was returned back by DW3 and was kept by him in his possession; but it was stolen from his possession. There is no Crl.R.P.No.2423/07 7 conduct consistent with that theory advanced by the petitioner coming forth on his part when he received Ext.P5. The oral evidence of PW1 is thus eminently supported by Ext.P1 agreement as also his ability to produce Ext.P2 cheque admittedly drawn on a cheque leaf issued to the petitioner by his bank to operate his account and with his signature with date, admittedly having been affixed on it. Such version of PW1 is further supported by the eloquent silence of the petitioner on receipt of Ext.P5 notice of demand. The theory that there was no liability to issue Ext.P2 cheque because Ext.P1 liability has been discharged orally is also so improbable and artificial that such theory advanced must also be held to support and corroborate the oral evidence of DW1. The oral evidence of DWs 2 and 3 about the artificial discharge and the oral evidence of DW3 about his receiving and returning a blank signed cheque from the petitioner do all show that the petitioner has no reasonable and probable cause. 8. I am, in these circumstances, satisfied that execution of Ext.P1 cheque stands proved convincingly by the oral evidence of PW1 and the various other corroborating Crl.R.P.No.2423/07 8 circumstances to which I have already adverted to. 9. Once execution of the cheque is proved, a train of presumptions follow under Sections 118 and 139 of the Negotiable Instruments Act. The burden is on the petitioner to rebut such presumptions. Of course, the burden on the petitioner is not to prove his case to the hilt or beyond reasonable doubt. He does not have the burden to disprove the case of the complainant; but he must prove his case by the yardstick of preponderance of possibilities and probabilities as a litigant in a civil case is bound to do. The oral evidence of DWs 1 to 4 and Exts.D1 to D5 as also the circumstances brought out from the oral evidence of PW1 are, not according to me, sufficient to discharge that inferior burden placed on the shoulders of the petitioner under law. The case of the petitioner does not compete in probabilities with the case of PW1. The case of the petitioner is inherently fragile and is not supported by any satisfactory materials. The only reasonable conclusion that any prudent mind can arrive at on the basis of the materials placed before the court is that PW1's evidence is convincingly proved and the version of the defence is not at all proved. It Crl.R.P.No.2423/07 9 follows therefore that the conclusion of the courts below on these aspects are correct, cogent and acceptable and do not, at any rate, warrant interference at this third tier of criminal litigation where revisional jurisdiction of superintendence and correction is sought to be invoked. 10. No other contentions are raised on merits. However, there is a contention that the quantum of compensation directed to be paid is excessive. The complainant has been compelled to fight two rounds of unnecessary legal battle. Contentions raised by the petitioner at this third tier, do appear to me to be absolutely unsustainable and frivolous. The courts below, in these circumstances, did not commit any error in directing payment of Rs.40,000/- as compensation. The substantive sentence of imprisonment imposed and the default sentence imposed are all absolutely reasonable, modest, fair and just. They do not warrant any interference at all. 11. Lastly and finally, the learned counsel for the petitioner prays that some further time may be given to the petitioner to raise and make payment of the compensation amount and avoid the default sentence. I find no merit or grace Crl.R.P.No.2423/07 10 in the said prayer. However, I am satisfied, that a breathing time can be given to the petitioner to raise and pay the compensation amount and avoid the default sentence. 12. In the result this revision petition is dismissed but with the observation/direction that the impugned sentence shall not be executed till 29/02/2008. On or before that date, the petitioner can raise and pay the amount and avoid the default sentence. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/03/2008 for execution of the impugned sentence. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.2423/07 11 Crl.R.P.No.2423/07 12 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008