IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 Crl.Rev.Pet.No. 1657 of 2010() ------------------------------ CRA.22/2009 of ST.1100/2006 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- GOPALAKRISHNAN,S/O.THAKKATTATHIL RAMAN, ALIAS PADMANABHAN,THAIKKOTTATHIL HOUSE, KADALUNDI VILLAGE,KOZHIKODE TALUK. BY ADV. SRI.SUNIL V.MOHAMMED RESPONDENTS: STATE/COMPLAINANT -------------------------------- 1. THE STATEOF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. SUHARA.C,W/O.SAIDALAVI KOYA,JASI MANZIL, KAPPALANGADI,CHALIYAM.P.O,KOZHIKODE. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1657 of 2010 ------------------------------- Dated this the 8th day of June, 2010. O R D E R The revision petitioner is the accused. The trial court as well as the lower appellate court found that the accused/revision petitioner is guilty u/s.138 of Negotiable Instruments Act and accordingly he is sentenced. It is the above findings challenged in this revision petition. 2. The case of the complainant is that, on 8.12.2005 the accused borrowed an amount of Rs.2,20,000/- from the complainant with the offer that the same will be repaid after one month. But according to the complainant, no amount was paid in terms of the verbal agreement and when he insisted the accused/revision petitioner for the repayment, he had issued a cheque dated 8.2.2006 for the above amount and when the said cheque presented for encashment it was dishonored. According to the complainant, a lawyer notice was sent to the accused informing him the dishonour of the cheque and demanding for Crl. R.P.No.1657 of 2010 2 the amount covered by the cheque but not paid. Hence according to the complainant, the revision petitioner has committed the offence u/s.138 of Negotiable Instruments Act. With the above allegation, the complainant approached the trial court by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and thus instituted S.T.No.1100/06 in the Court of Judicial First Class Magistrate-V, Kozhikode. During the trial of the case, the complainant herself gave evidence as PW1 and beside the above deposition of the complainant, she had also produced Exts.P1 to P6 documents. But no evidence has adduced from the side of the defence. On the basis of the available materials and evidence, the trial court found that the complainant has succeeded in proving the alleged transaction and also that the accused issued Ext.P1 cheque in her favour, in discharge of the legally enforceable debt. Thus, the trial court convicted the accused/revision petitioner u/s.138 of Negotiable Instruments Act and accordingly sentenced her to undergo simple imprisonment for 3 months and also directed to Crl. R.P.No.1657 of 2010 3 pay compensation of Rs.2,20,000/- to the complainant and on default in payment of compensation, the accused is further directed to undergo simple imprisonment for 6 months. The above conviction and sentence challenged in the appeal filed by the revision petitioner, but by judgment dated 2.3.2010 in Crl.A.22/09, the Court of Addl. Sessions Judge, Fast Track (Ad hoc-II), Kozhikode, dismissed the appeal, confirming the conviction and sentence imposed by the trial court. It is the above finding, conviction and sentence challenged in this revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the trial court as well as the lower appellate court. 4. The learned counsel for the revision petitioner vehemently submitted that, the complainant has not established her case beyond reasonable doubt and the complainant in a prosecution for the offence u/s.138 of Negotiable Instruments Act is entitled to get presumption u/s.139 of Negotiable Instruments Crl. R.P.No.1657 of 2010 4 Act, only when the complainant establishes the transaction, execution and issuance of the cheque. According to the learned counsel, the trial court as well as the lower appellate court committed grave mistake in simply drawing the benefit u/s.139 of Negotiable Instruments Act in favour of the complainant, on the ground that the accused has not adduced any evidence to rebut the presumption. In support of the above submission, the learned counsel place reliance on the decisions namely, Krishna Janardhan Bhat Vs. Dattatraya G.Hegde {2008(4) SCC 54}, Joseph Vs. State of Kerala {2009(3) KLT SN 28}, Thomas Vs. Thomas {2005(1) KLT 297}. 5. On hearing the arguments advanced by the learned counsel for the revision petitioner and also on perusal of the judgments of the courts below, it can be seen that the specific case of the accused/revision petitioner is that, he had borrowed an amount of Rs.10,000/- from the husband of the complainant and at that time two blank cheques were entrusted with him. Thus, according to the accused/revision petitioner one of the Crl. R.P.No.1657 of 2010 5 said blank signed cheques entrusted with the husband of the complainant, misused by the complainant to file the present complaint. The learned counsel has no case that, the revision petitioner has adduced any evidence in support of the above plea of the defence. When PW1 was examined, she gave substantial evidence as to the transaction and also regarding the execution and issuance of the cheque. According to the courts below, though PW1 was cross examined nothing was brought on record to disbelieve her version. But according to the learned counsel, when PW1 was cross examined, some facts were brought on record to show that, she was not having sufficient capacity to part with such a huge amount. All the points raised by the counsel is based upon the facts and evidences, which were considered by the courts below. Going by the finding arrived on by the trial court as well as the lower appellate court, it can be seen that the accused has not specifically explained as to how Ext.P1 cheque reached in the hands of PW1. The trial court further held that, even though the accused has a case that the Crl. R.P.No.1657 of 2010 6 cheque was entrusted with the complainant, he has not proved his defence version by satisfactory evidence. 6. In the decision reported in, Johnson Scaria Vs. State of Kerala {2006(4) KLT 290}, this court held that “the burden is always on the prosecution to prove the offence against an indictee in all executions and a prosecution u/s.138 of Negotiable Instruments Act is no exception to that general rule. Execution and issue of the cheque have to be proved to draw the presumption u/s.139 of Negotiable Instruments Act and S.139 does not shift the burden to prove execution and issue of the cheque. Admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes the long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But u/s.114 of the Evidence Act appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered”. Crl. R.P.No.1657 of 2010 7 In the very same decision cited above, this court has also held that “the presumption will live, exist and survive and shall vanish only when the “contrary proved” by the accused”. In the present case, Ext.P1 cheque signed and issued by the accused/revision petitioner, was produced by the complainant from her possession. The accused/revision petitioner has also got a case that the said cheque is the one, which entrusted with the husband of the complainant, connected with another transaction. When the revision petitioner admit the signature contained in Ext.P1 cheque and the execution and issuance of the cheque, it is for the accused/revision petitioner to establish as to how the said cheque reached in the hands of the complainant. A mere denial or vague suggestion is not sufficient to discharge the above burden of the accused. Ofcourse in order to substantiate the defence, the accused need not mount to the box and he need not prove his case beyond reasonable doubt, as in the case of the prosecution. But in the present case, no effective step was taken by the accused to substantiate his version and Crl. R.P.No.1657 of 2010 8 thereby to discharge the burden of rebutting the presumption. These facts and the position is now well settled. On the basis of the facts and evidence and the materials on record, the trial court as well as the lower appellate court has concurrently found that the complainant has established her case and the accused failed to rebut the presumption u/s.139 of Negotiable Instruments Act. In the light of the facts and circumstances involved in the case, I find no reason to interfere with the findings of the courts below, which purely on the basis of facts and evidence, by exercising revisional jurisdiction of this court. Therefore there is no merit in the revision petition. 7. The learned counsel for the revision petitioner submitted that a lenient view may be taken in the matter of sentence, considering the fact that the revision petitioner is a lady. According to me, the above request can be considered favourably, especially, in the light of the decision of the Apex court in Ahammedkutty Vs. Abdullakoya {2008(1) KLT 851 (SC)}. The apex court in a recent decision reported in Damodar Crl. R.P.No.1657 of 2010 9 S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the result, this revision petition is disposed of confirming the conviction of the respondent u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment imposed against the revision petitioner is reduced into, till raising of the court and she is also sentenced to pay a fine of Rs.2,30,000/- and in default she is directed to undergo simple imprisonment for a period of 6 months and on realisation of the fine amount, a sum of Rs.2,25,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 8.9.2010 to receive the sentence and to pay the fine amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of fine Crl. R.P.No.1657 of 2010 10 amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/