IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Crl.Rev.Pet.No. 101 of 2008() ----------------------------- CRA.804/2005 of ADDL. SESSIONS COURT, THRISSUR ST.2962/2003 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- REKHA K., D/O.REMADEVI, KARUTHETHIL HOUSE, P.O.VELUTHUR, THRISSUR DISTRICT. BY ADV. SRI.C.A.CHACKO PST.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE -------------------------------------------- 1. VINOD.K., S/O.VENU NAIR, KOTTAYIL HOUSE, KAINOOR DESOM, PUTHUR VILLAGE, P.O.KAINOOR, THRISSUR. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI.GIKKU JACOB. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 101 OF 2008 ------------------------------------------------- Dated this the 17th day of January, 2008 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the N.I. Act. The petitioner now faces a sentence of imprisonment till rising of court. She is further directed to pay the actual cheque amount as compensation and in default, to undergo simple imprisonment for a period of three months. 2. The cheque is for an amount of Rs.70,000/-. It bears the date 25/3/03. Signature in the cheque is admitted. That the cheque was signed and handed over is also admitted. It was contended that the cheque was not handed over to the complainant for the due discharge of any legally enforcible debt/liability; but was handed to a finance company, of which Crl.R.P. No. 101 OF 2008 -: 2 :- the complainant was an official, as security for the due discharge of a loan liability incurred by the petitioner's husband when he availed a vehicle loan from the said company. Notice of demand, though duly received and acknowledged, did not admittedly evoke any response. The complainant came to court after observing the statutory time table scrupulously. He examined himself as P.W.1. He proved Exts.P1 to P7. The accused examined herself as D.W.1 and her husband as D.W.2. Exts.D1 to D4 were also marked on the side of the accused. 3. The courts below came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Sec.138 of the N.I. Act. Accordingly, the courts below proceeded to pass the impugned concurrent judgments. 4. The petitioner claims to be aggrieved by the impugned judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner assails the impugned judgments on one short ground. She contends that the cheque has not been proved to be one issued for the due discharge of any legally enforcible debt/liability. 5. Both the courts have considered this plea in detail. Crl.R.P. No. 101 OF 2008 -: 3 :- The petitioner has a case that P.W.1 is an official of the finance company from which the petitioner's husband had availed loan. P.W.1 denied the same. Ext.D1 visiting card which was pressed into service to prove this contention was denied by P.W.1. We have primarily the evidence of P.W.1 to explain the circumstances under which the cheque – Ext.P1 drawn on a cheque leaf issued to the petitioner by her bank to operate her account with the admitted signature of the petitioner affixed thereon travelled from the possession of the petitioner to that of the complainant. Except the self-serving testimony of D.Ws.1 and 2 that the cheque was handed over to the finance company and the petitioner was an official of the finance company, there is no semblance of evidence to prove or probabilise this defence advanced by the accused. The eloquent silence/inaction on the part of the petitioner after receiving the statutory notice of demand does knock the bottom out of the theory advanced by the accused. No satisfactory explanation whatsoever is offered for such artificial and improbable conduct on the part of the petitioner if her present version were true. 6. I am at the third tier of criminal litigation and it is trite that the revisional jurisdiction of superintendence and correction cannot be lightly invoked to interfere with the concurrent Crl.R.P. No. 101 OF 2008 -: 4 :- findings of fact which are probable and cogent. I am not persuaded to agree that the concurrent finding of fact on this aspect deserves to be interfered. 7. The presumption under Sec.139 of the N.I. Act does also stare at the petitioner. The burden is on the petitioner to rebut the said presumption. The petitioner need not disprove the case of the complainant; nor prove her case beyond reasonable doubt. But at least by the test of preponderance of possibilities and probabilities the indictee has to show that his case was true or at least succeeds in generating a reasonable doubt about the initial case of the complainant. Neither has been achieved in this case on the materials available. 8. The sentence imposed is most reasonable and modest. After about 4 years of acrimony and two rounds of legal battle the petitioner is obliged only to pay the actual cheque amount as compensation. The plight of the complainant cannot be ignored. I do not, in these circumstances, find any merit in the petitioner's prayer for a long period of three months to raise and pay the amount of compensation and to avoid the default sentence. However, I am satisfied that a short breathing time can be given to the petitioner to so raise and pay the amount and avoid the default sentence. Crl.R.P. No. 101 OF 2008 -: 5 :- 9. In the result, this petition is dismissed; but with the observation/direction that the petitioner shall have time till 29/2/08 to raise and pay the amount and avoid the default sentence. The impugned sentence shall not be executed till that date. On or before 1/3/08, the petitioner shall appear and her sureties shall produce her before the learned Magistrate for execution of the impugned sentence. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge