IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 Crl.Rev.Pet.No. 393 of 2007() ----------------------------- CRA.164/2006 of II ADDL.SESSIONS COURT, ERNAKULAM CC.669/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- T.K.GEORGE, THOPPIL HOUSE, SACHIVOTHAMAPURAM P.O., KURICHY, KOTTAYAM DISTRICT. BY ADV. SRI.S.SUDHISH KUMAR SRI.K.B.DAYAL RESPONDENT(S)/RESPONDENTS/COMPLAINANT: -------------------------------------- 1. HENRY FERNANDEZ, M.D., HARMET TOURS & TRAVELS (PVT.) LTD., SELMAN CHAMBERS, A.L.JACOB ROAD, KOCHI-35. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN SRI.T.I.DANIEL FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON 18/08/2011 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.393 OF 2007 (D) ----------------------------------- Dated this the 18th day of August, 2011 O R D E R The revision is by an accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. The learned Magistrate, negativing his plea of not guilty, on his conviction, sentenced him to undergo simple imprisonment for one year and also to pay a fine of Rs.10 lakhs with direction to pay Rs.9 lakhs out of the fine, if realised, to the complainant as compensation. The learned Sessions Judge turning down the appeal preferred by the accused, confirmed the conviction, but, modified the sentence reducing the substantive term of imprisonment to one day, till the rising of the court, retaining the fine and payment of compensation. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the accused assailed the conviction concurrently rendered by the two courts below mainly Crl.R.P.No.393/2007 2 on three grounds. Despite the plea of the accused denying of having any transaction with the complainant and disputing not only the handing over of the cheque but even the writings and his signatures therein, no convincing evidence was let in by the complainant to prove the transaction and execution of the cheque and that it was supported by consideration, is the submission of the counsel. The evidence tendered by the complainant examined as PW1 in the case was conflicting with the case advanced in his complaint inasmuch as giving a go by to the case alleged in the complaint that the transaction was between him and the accused in evidence his case was that the transaction relating to the issue of the cheque was between him and the son of the accused, submits the counsel. Both the courts below failed to appreciate the challenge raised over the transaction imputed and also the execution of the cheque as if the burden to prove the essential ingredients in relation to those aspects rested on the accused when he had set up a defence denying the transaction and execution of cheque, which, according to the counsel, was thoroughly improper and incorrect. Asserting that the burden was on the complainant to Crl.R.P.No.393/2007 3 prove the transaction and also the execution of the cheque when there is a challenge thereto, and no positive evidence has been let in the case by the complainant that the cheque had been issued towards a legally enforceable debt or liability against the accused in respect of a transaction with him, but, on the contrary, the evidence of the complainant disclosed that the transaction relating to the cheque was between him and the son of the accused, it is contended that the conviction entered against the accused by the courts below for the offence under Section 138 of the N.I.Act, is unsustainable. Complainant had gone over to Sharjah to meet the son of the accused after the dishonour of the cheque, as admitted in his evidence, is also highlighted by the counsel to contend that the transaction was between the complainant and the son of the accused, and as against the accused, the complainant had no legally enforceable debt or liability under any transaction. The accused had informed his bank the loss of three cheques, but, such intimation was given to the bank after the dishonour of the cheque involved in the case, was the view taken by the courts below. There was no evidence from the part of the complainant to hold that the Crl.R.P.No.393/2007 4 instructions for stop payment were issued after intimation of dishonour of the cheque is the submission of the counsel to contend that the defence canvassed that he had lost the cheque leaves was more probable and deserved acceptance. The handwriting expert, to whom, the cheques were sent over has noticed some similarities in the writings and signatures with that of the accused is not significant where the complainant has not proved the transaction and also the execution of the cheque by the accused, is the submission of the counsel to impeach the report of the expert, and also the conviction. The counsel has relied on Kamalammal v. Mohanan (2006 (3) KLT 972) to contend that presumption under Section 139 of the N.I.Act will not be available to the complainant that a cheque has been duly executed for discharge of a debt or liability. Reliance is also placed on Jose v. Joy (2008 (3) KLT 512) by the counsel to contend it is not proper and correct to hold that the prosecution case is probable on the basis of the improbability or falsity of the defence set up by the accused. The burden placed on the accused to substantiate his defence is much less and if the materials on record show his version probable, which, in the Crl.R.P.No.393/2007 5 present case, is amply demonstrated by the conflicting version presented by the complainant himself over the transaction, the learned counsel relying on Narayana Menon v. State of Kerala (2006 (3) KLT 404) contended that the presumption covered by the Statute is not available to the complainant to sustain the prosecution case where he had failed to prove the transaction and also the execution of the cheque by the complainant. Some arguments were also addressed by the counsel placing reliance on Thambi v. Mathew (1987 (2) KLT 848 (F.B.)) that the revisional jurisdiction of this Court is part of its general appellate jurisdiction and, therefore, in a case of this nature where, according to the counsel, there was improper application of law and mis-appreciation of evidence by the inferior courts, this Court is fully empowered to re-appreciate the evidence and form its own conclusions to examine whether the conviction of the accused, in the given facts and materials placed, is sustainable. 3. Per contra, the learned counsel for the 1st respondent/complainant pointing out the limited scope of Crl.R.P.No.393/2007 6 revisional jurisdiction in examining the propriety, legality and correctness of the orders passed by the inferior courts submitted that the conviction entered against the accused, by the two courts below, concurrently, does not suffer from any infirmity whatsoever. There is absolutely no merit in the challenges imputed that the evidence of the complainant was conflicting with the case set up by him over the transaction relating to the issue of the cheque and, further, the evidence of the expert, who was examined as DW2, amply proved that the cheque had been signed and written by none other than the accused, submits the counsel. Both the courts on comparison of the cheque with the admitted writings of the accused were satisfied of the similarities in the writings to approve the opinion of the expert, and that defence pleaded as to loss of cheques in the backdrop that the intimation of stop payment to the bank was issued after dishonour of the cheque in the present case was found devoid of any merit, were all highlighted by the counsel to contend that the revision challenging the conviction of the accused, upheld by the appellate court as well, is only an experimental venture to prolong the litigation over the cheque issued in 1995. Revision Crl.R.P.No.393/2007 7 is only to be dismissed, is the submission of the counsel. 4. I have perused the records of the case to consider the merit of the submissions made by the counsel on both sides. Complainant carries on a business providing guidance and also arrangements, for foreign and inland employment to those aspiring for better employment. On the representation made by the son of the accused, who claimed to be a representative of several employers in foreign countries that he is capable of recruiting people from India and provide employment avenues to joint seekers, as instructed by him and towards part payment of the terms and conditions agreed upon, a sum of Rs.15 lakhs was paid to his father, the accused, is the case of the complainant. Promise made as aforesaid by the son of the accused was not honoured and, thereafter, he approached the accused, who agreed to pay the amount as a personal surety of his son and, accordingly, he issued three cheques, each for a sum of Rs.5 lakhs. Complaint relates to one of the cheques, which when presented for encashment, was returned with the endorsement “payment stopped by the drawer”. After complying of the Crl.R.P.No.393/2007 8 statutory formalities as to issue of a statutory notice on dishonour of the instrument, the compliant was filed launching the prosecution against the accused for the offence under Section 138 of the N.I.Act. The defence of the accused was total denial of any transaction with the complainant, contending that the transaction, if any, was only with his son and not with him. Cheque involved was one among the three cheques lost by him was his further case disputing the writings in the cheque. The cheque was got examined through a hand writing expert, but his report evidently was against the accused. On the materials placed, the case of the complainant was upheld that the cheque had been issued by the accused towards an existing debt or liability, and the denial of its execution, disputing even the writings thereunder by him was found to be devoid of any merit. The accused was found guilty of the offence imputed on the proved facts of the case, and accordingly, convicted of such offence, which has been affirmed in appeal as well by the learned Sessions Judge. 5. The transaction was with his son and not with him, and Crl.R.P.No.393/2007 9 therefore, he is not liable to be prosecuted on the basis of the dishonoured cheque is the defence canvassed to impeach the conviction. The evidence of the complainant that he had gone over to Sharjah to meet the son of the accused in connection with the transaction entered into for getting job visas is also canvassed as a material circumstance that the accused could not be fixed with any liability in respect of such transaction. There is no merit in the defence so raised. It is not the transaction giving rise to the debt or liability as between the complainant and drawer under the cheques, that is the foundation for a prosecution of the offence under Section 138 of the N.I.Act, but, only whether the instrument had been issued towards discharge of a debt or liability due to the complainant. Such debt or liability need not be from the drawer, but, from some other person. The case of the complainant that there was a transaction between him and the son of the accused, is not disputed by the accused. When such be the case, whether the accused had issued the cheques involved in the case towards the discharge of a debt or liability which his son owed to the complainant, that alone, was to be looked into. The case of the complainant that an amount of Crl.R.P.No.393/2007 10 Rs.15 lakhs, for and on behalf of the son was collected by the father, the accused, and later, towards refund of the sum, he had issued three cheques, each of them for five lakhs, and one among them is involved in the present case was found credible and trustworthy to the learned Magistrate, who had the opportunity to watch his demeanour and deportment while recording his testimony. After re-appreciating his evidence, the learned Sessions judge also concurred with the same view. No infirmity whatsoever has been brought to my notice by the learned counsel why such evidence rendered by the complainant, which found approval by the two inferior courts, is unacceptable. So far as the execution of the cheque is concerned, even if it is denied, there is no rule of law that independent corroboration is required for. Corroboration after all is one of prudence, and not a rule of law. Whether corroboration is required or not, to enter a finding on a disputed issue, depends upon the facts and materials presented in the case. Prosecution of the accused is with respect to a cheque on its dishonour, which, admittedly arose from the account maintained by the accused. He had set up a defence that the cheque involved in the case with two other Crl.R.P.No.393/2007 11 cheques were lost by him and, then, he had given instructions to his bank not to honour them. He had disputed the writings and also signature in the cheque involved in the case. The cheque involved was one among the three cheques issued from the account of the accused. Ext.D1, the stop payment letter issued by the accused, which has been proved through DW1, discloses that such instructions were given long after the presentation and dishonour of one among the three cheques. At the time of presentation of Ext.P1 cheque in the case the evidence of DW1 would show that the accused had a balance of Rs.515/- only in his account. It is also to be noted that the accused, who had set up a defence of losing three cheques did not even refer to the other two cheques, nor of any circumstances relating to them, though one among them had by that time after presentation stood dishonoured, in his reply notice, exhibited as Ext.P6. The accused, who has a case of losing three cheques, after dishonour of one among those cheques, has not cared to file any complaint before the police or to the bank, other than issuing instructions of stop payment, under Ext.D1, after such dishonour. Added to the aforesaid circumstance, it is worth to take note that the Crl.R.P.No.393/2007 12 accused, who had set up a defence that he had lost three cheques and that instructions were given to the bank to stop payment on those cheques, denying the execution of the cheque involved in the case and also of having any transaction with the complainant, has not mounted the box to swear in support of his case, providing an opportunity to the complainant to test the veracity of his defence. No doubt, the accused has the right to remain even silent and the onus is always on the prosecution to establish its guilt. However, in a case involving dishonour of the cheque where the evidence of the complainant is found credible and trustworthy, with statutory presumptions available in favour of the holder of the cheque that it had been obtained in discharge of a debt or liability, non-mounting of the box and getting himself examined by the accused, in support of his defence, has necessarily to be taken due note of. The only other witness examined by the accused is DW2, the handwriting expert, whose report, after examining the writings in the cheques with the admitted writings of the accused, no doubt, was detrimental to him. He has expressed the opinion that the writings in the cheque and the admitted writings of the accused Crl.R.P.No.393/2007 13 are by the same hand. Both the courts below, after going through the materials thereof, have also expressed the same view to accept the opinion of the expert and, thus, to hold that the plea of the accused that the cheque was not written and signature was not subscribed by him, is false. 6. The finding of guilt entered against the accused, in the proved facts of the case, as established by the materials tendered, by the learned Magistrate, which has been confirmed by the learned Sessions Judge, as discussed above, suffers from no infirmity whatsoever. The accused had canvassed a defence denying the transaction over the cheque, disputing even its execution, and, set forth a case that the transaction was between his son and the complainant and the cheque was one among the three cheques that he had lost, is not at all material in the proved facts of the case where the falsity of such defence is demonstrated by the materials produced. The question whether proof from any source other than the complainant over the execution of the cheque and also the transaction relating to that instrument, even if it is denied by the drawer, depends upon the Crl.R.P.No.393/2007 14 facts and circumstances involved in the case. It cannot be stated that the evidence of the complainant without corroboration from independent source is not sufficient to prove the execution of the instrument and also the transaction relating to the issue of the cheque. In a case where the accused is able to show that the defence canvassed in those lines by him is probable, it may be said that the uncorroborated testimony of the complainant is not sufficient to decide such a disputed question. However, in a case where the falsity of the defence set up by the accused is visible as day light, and more so, where two courts have concurrently found that the sworn testimony of the complainant proving the execution of the cheque and the transaction with the accused relating to such instrument is trustworthy, reliable and convincing, as so long as as the conclusion formed on appreciation of evidence is not shown to be suffering from any infirmity, there is no scope for even raising that challenge any further, at any rate, within the narrow compass with which revisional jurisdiction is exercisable in deciding the merit of the order of the inferior court. In short, suffice to state, that the conviction of the accused is fully supported by legal evidence Crl.R.P.No.393/2007 15 and it is not assailable of any ground whatsoever. 7. Reliance placed by the counsel for the accused in Kamalammal's case (cited supra) that the presumption under Section 139 of the N.I.Act would not assist the complainant to show that the cheque is issued/executed by the drawer, has no significance or merit in the proved facts of the case where the defence canvassed by the accused denying the execution and also the transaction was found unworthy of any merit, and further, the evidence of the complainant over execution and also the handing over of the cheque was found reliable and convincing. There can be no quarrel with regard to the proposition laid down in Jose's case (cited supra) relied by the counsel for the accused that probability of the prosecution case does not depend upon the improbability or falsity of defence case. However, where the case of the complainant is established by convincing legal evidence and that the defence set up by the accused is shown to be unworthy of any merit and false, deciding of the merit of the prosecution case with reference to the probability does not arise as it stands already proved by the legal Crl.R.P.No.393/2007 16 evidence tendered in the case. The decision referred to above would also not assist, in the given facts of the case, the accused in any manner. In Narayana Menon's case (cited supra), what is the nature of the burden cast upon the accused to rebut the statutory presumption when a prosecution is launched against him under Section 138 of the N.I.Act has been dealt upon, pointing out that the accused need only show that the defence canvassed by him is probable. In the present case, as already stated, the defence set up has been found to be not only improper, but totally false. That decision also does not assist the accused in the case. Reliance placed by the counsel in Thampi’s case (cited supra) is totally misplaced. This Court has expressed in the aforesaid decision that revisional jurisdiction of this Court is part of its general appellate jurisdiction, is stressed upon by the counsel to urge that the challenges raised by him assailing the conviction required to be examined meticulously with reference to the materials tendered and in short, re-appreciating the evidence of the case. In the aforesaid decision, this Court was considering the question whether there would be merger of the decree when an appeal is dismissal as time barred and in Crl.R.P.No.393/2007 17 that context, revisional jurisdiction of the High Court as under the C.P.C. was looked into and it was stated that it is part of its general appellate jurisdiction. Needless to point out that the scope of revisional jurisdiction of the C.P.C. is much less when compared to the exercise of such jurisdiction under the Cr.P.C. Be that as it may, the decision has no application in examining the revisional jurisdiction of this Court under the Cr.P.C. where under, a finding of fact entered by an inferior court is not liable to be disturbed unless it is shown to be perverse or it could not have been legitimately formed on the materials placed on record or it is patently erroneous and unsustainable under law. There is no merit in any of the challenges mooted by the accused to assail his conviction, which has been founded on unimpeachable legal evidence and concurrently rendered by two inferior courts. 8. So far as the sentence imposed against the accused, I find, sufficient leniency has been extended by the learned Sessions Judge in interfering with the substantive term of imprisonment imposed by the learned Magistrate, reducing it to Crl.R.P.No.393/2007 18 imprisonment for a day, till the rising of the court, retaining the fine awarded by the learned Magistrate without any modification. Fine awarded was double the amount of the cheque, in the given facts of the case, does not at all warrant interference where the cheque involved is dated 12.12.1995, and, further, the transaction related to collection of money with promises of securing visas to job seekers in foreign countries. It is reasonable to hold that the complainant might have been put to severe hardship and sufferings when the contract entered into after collection of the funds from him fell through. So much so, sentence imposed against the accused by the courts below has only to be upheld. I do so. Revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.393/2007 19