IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 Crl.Rev.Pet.No. 4542 of 2006() ------------------------------ CRA.94/2001 of II ADDL.SESSIONS COURT, KOLLAM CC.68/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- KHANI BAVA, S/O. CHAYA RAWTHER, HOTEL ELITE AYOOR MURI, EDAMULACKAL VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.S.SREEKUMAR SRI.P.K.SOYUZ RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------------------------------------------------- 1. KUNJUMON, S/O. KUNJACHAN, SRI VILAYIL, AYOOR MURI, EDAMULACKAL VILLAGE, PATHANAPURAM TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL R2 BY PUBLIC PROSECUTOR SRI.PUZHAKARA MOHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.4542 OF 2006 -------------------------------- Dated this the 26th day of July 2011 ORDER Concurrent verdict of guilt rendered against the revision petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), by the two inferior courts is challenged in this revision. The trial Magistrate, on his conviction sentenced him to pay a fine of Rs.5,000/- and to undergo simple imprisonment for one year. In default of payment of fine, the accused was directed to undergo simple imprisonment for three months more. A further direction was also given to pay Rs.75,000/- as compensation under Section 357(2) of the Code of Criminal Procedure to the complainant. In appeal, the learned Sessions Judge, confirming the conviction, modified the sentence with respect to the substantive term of imprisonment imposed, reducing it to simple imprisonment for six months, retaining the direction to pay compensation of Rs.75,000/- with default term of simple imprisonment for one month. Fine imposed by the trial Magistrate was vacated. Feeling aggrieved, the accused has preferred this revision. Crl.R.P No.4542/2006 - 2 - 2. I heard the learned counsel for the revision petitioner/accused and also the learned counsel for R1/complainant. The main challenge pressed into service by the learned counsel for the accused to assail the finding of guilt rendered, concurrently, by the two courts to found a conviction against him is built upon the premise that both the courts below failed to appreciate the cardinal question whether the cheque involved in the case was executed by the accused, which was denied by him. The accused had set up a defence that the complainant, with his associates, a few days before the presentation of the cheque involved, had criminally trespassed upon his shop, a bakery, indulged in destruction of valuable articles stored therein and pilfered currency worth Rs.20,000/- and also signed cheque leaves kept in the drawer of his table. They had also manhandled him in the aforesaid incident, consequent to which he sustained injuries warranting his hospitalisation for a period of four days was his case. An attested copy of the F.I.R registered in the crime recording his statement, while he was hospitalised, was produced as Ext.D1 to substantiate his defence. He also got himself examined as DW1 in the case. When such materials were tendered to substantiate his defence, Crl.R.P No.4542/2006 - 3 - without even appreciating whether the complainant has produced any tangible piece of legal evidence to prove the execution of the instrument, the cheque, on which the prosecution was launched, it is submitted, both the courts proceeded as if the accused had failed to substantiate the defence as pleaded by him with cogent and convincing evidence. The accused need only to show that the defence canvassed by him was probable, satisfying the test of preponderance of probabilities, but, overlooking that cardinal principle in appreciating defence evidence, the courts below had found him guilty holding that he has not proved his defence, according to the counsel. The question was whether the complainant had proved due execution and passing of consideration, which are necessary to sustain a prosecution over a dishonoured cheque, more particularly, when there is a specific denial of those aspects by the accused, was not at all taken into account by the two courts below, is the submission of the counsel to contend that this is a fit case where exercise of revisional jurisdiction is called for to set aside the conviction imposed against the accused as unsustainable under law. Crl.R.P No.4542/2006 - 4 - 3. Per contra, the learned counsel for 1st respondent/complainant contended, both the courts, after meticulous consideration of the materials tendered in the case, have concurrently held that the case canvassed by the defence to impeach the execution of the cheque and also transaction with the complainant was unworthy of any merit. Adverting to the closing of the account maintained by the accused in the bank after issue of the cheque involved, the learned counsel for the complainant submitted that even in Ext.D1, which was the sheet anchor on which the entire edifice of the defence was set up, there was no case for the accused as to the pilferage of any cheque leaves from his shop in the occurrence under which his shop was alleged to have been ransacked by the complainant and others. When there was not even any mention of the theft of cheque leaves in Ext.D1 statement, the defence set up in the trial of the case that he had the habit of keeping signed cheque leaves in the drawer of his table, was rightly and correctly found to be a false story by both courts, and when such a false story was set up, that can also be definitely taken note of by the court where there is material sustaining the case canvassed by the complainant to found the accused guilty of the offence imputed, is Crl.R.P No.4542/2006 - 5 - the further submission of the counsel. At any rate, finding on fact entered by the inferior courts is not liable to be disturbed unless and until it is shown to be perverse or it could not have been legitimately drown on the materials on record, is the submission of the counsel to contend that exercise of revisional jurisdiction to interfere with the conviction of the accused is impermissible. 4. I have gone through the judgments rendered by the learned Magistrate and also the learned Sessions Judge. Evidently, the accused had canvassed an entirely different and divergent defence to assail his conviction before the Sessions Judge. Where as before the trial Magistrate, he had set up a defence on the basis of which his conviction is assailed in this revision. It is seen from the judgment rendered by the learned Sessions Judge, the arguments projected by his counsel was that the cheque had been issued as a security for a transaction with the complainant. Though the learned counsel for the accused before me would contend that even in the appeal memorandum presented before the Sessions Judge no such case was pleaded, to suggest that the arguments purported to have been made by the counsel for the accused were not properly recorded by the learned Sessions Judge in the judgment, needless to state, the Crl.R.P No.4542/2006 - 6 - proposition so made out deserve to be taken only for its rejection. What is recorded by the learned Sessions Judge, with respect to the submissions of the defence counsel as reflected in his judgment, cannot be assailed before this court as if those statements were not based on the arguments made by the defence counsel, even assuming that grounds thereof have not been raised in the memorandum of appeal. Leaving it aside, looking into the judgments rendered by both the courts, it is seen, the plea set up by the accused was only to the effect that he had a habit of keeping signed blank cheques. He has no case that the entries in the cheques were also made when signed cheque leaves were kept in his drawer. If at all the accused had any case that the cheque produced in the case was not drawn by him stating the name of the payee and also the amount, but, it contained only his signature, nothing prevented him from having an examination of that instrument through a scientific expert with the assistance of the court, moving an application in that regard. No such attempt was made by the accused is a tell tale circumstance indicating in unmistakable terms with the defence projected that he had the habit of keeping signed cheque leaves in his drawer was nothing but an invented story to wriggle out of Crl.R.P No.4542/2006 - 7 - the penal consequences arising from the dishonour of his cheque. Further more, the learned Magistrate, who had the opportunity to watch the demeanour and deportment of the complainant examined as PW1 and the accused as DW1, found the testimony of the complainant reliable, trust worthy and credible to accept his case, and that of the accused unworthy of any merit to reject his defence. The learned Sessions Judge, after reappraisal of the evidence, concurred with the conclusion so formed by the learned trial Magistrate to approve and uphold the finding of guilt entered against the accused. In this connection, it is also to be noted, both the trial Magistrate and the learned Sessions Judge, after looking into the cheque involved in the case, have observed that the writings in that instrument, all such writings, are by the same hand. So where the accused had admitted that the signature in the instrument was subscribed by him, the above observation made by the learned Magistrate and also the learned Sessions Judge, in effect, strikes the nail at his defence to conclude that it was totally meritless. Conviction of the accused for the offence under Section 138 of the NI Act, I find, is fully supported by unimpeachable legal evidence and the challenge canvassed to assail it is devoid of any merit. Crl.R.P No.4542/2006 - 8 - 5. Now, coming to the sentence imposed against the accused, as it now stands, he is directed to undergo simple imprisonment for six months and to pay compensation of Rs.75,000/- with default term of one month. So far as imposing sentence against an offender found guilty and convicted of an offence under Section 138 of the NI Act, the normal role is to limit the substantive term of imprisonment to the minimum required in the absence of exceptional circumstance warranting imposition of a punishment justifying his incarceration in prison for a term. Other than the circumstance shown that the accused had set up a false evidence to resist the prosecution, no exceptional circumstance has been made out to warrant the imposition of a longer term of imprisonment against him. That being so, I find the sentence imposed against the accused calls for modification. In modification of the substantive term of imprisonment imposed by the court below, the accused is directed to undergo simple imprisonment for a day, till the rising of the court, and to pay a compensation of Rs.1,00,000/-. Compensation has been enhanced to Rs.1,00,000/- taking note that the cheque in the present case is dated 09-10-1998. In default of payment of the compensation as fixed, the accused shall undergo simple Crl.R.P No.4542/2006 - 9 - imprisonment for a period of two months. If any amount has been deposited towards compensation, that shall be given credit to in the amount directed to be paid. The learned Magistrate is directed to keep in abeyance the execution of sentence for a period of one month from today to enable the petitioner to pay off the sum and thus avoid the default term of imprisonment. Petitioner is directed to appear before the Magistrate on 19-09-2011 to serve out the substantive term of imprisonment for one day, till the rising of the court, and to report payment of the compensation. In default of his appearance and nonpayment of the compensation, the learned Magistrate shall execute the sentence in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge