IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 Crl.Rev.Pet.No. 529 of 2003(B) ------------------------------------------ [CRL.A.NO.50/2000 OF ADDITIONAL SESSIONS COURT, KOTTAYAM, CC.NO.48/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, KOTTAYAM] .................... PETITIONER/APPELANT/ACCUSED: --------------------------------------------------- RAJENDRAN, SREERANGAM HOUSE, VELLOOR P.O., PAMPADY. BY ADV. SRI.M.P.MADHAVANKUTTY. RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------ 1. P.S.GIRIJA, GITANGALI HOUSE, LAKATTOOR P.O., KOTTAYAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.B.RAMAN PILLAI, SRI.GEORGE PHILIP, SRI.R.ANIL, SRI.RAJU RADHAKRISHNAN, SRI.ANIL K.MOHAMMED, R2 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. N.K.BALAKRISHNAN, J ----------------------------------------- Crl.R.P No.529 OF 2003 ---------------------------------------- Dated this the 1st day of August, 2011. O R D E R The accused in a case filed by the complainant alleging offence under Section 138 is the revision petitioner. He was convicted by the learned Magistrate and sentenced to undergo simple imprisonment for 6 months. He filed appeal before the Sessions Court. The learned Additional Sessions Judge confirmed the conviction but reduced the sentence to imprisonment for one month and to pay compensation of Rs.50,000/- to the complainant. This revision is directed against the said conviction and sentence. 2. The learned counsel Sri.Madhavankutty submits that though it was admitted that there was transaction between the complainant and accused, the specific case advanced by the accused was that he had borrowed only an amount of Rs. 1,00,000/- for which a promissory note was Crl.R.P No.529 OF 2003 2 executed in favour of the complainant. He had borrowed Rs.50,000/- and another sum of Rs.10,000/- for which two cheques were issued. The accused was running a chappal shop. The entire business concern was sold to the complainant to discharge the debt/liability due to the complainant. In support of that contention the accused relied upon two documents, Exts.D2 and D3 purported to have been sent by the complainant to the accused. It was also pointed out that though the complainant had filed a suit for recovery of money that suit was subsequently not pressed by the complainant. Though the accused also had filed a suit for getting return of the cheques and promissory notes, that suit was also subsequently not pressed. 3. The learned counsel for the complainant would submit that though the defence wanted to rely very much upon Exts.D2 and D3, in spite the fact that the accused stoutly denied the signatures in those documents, the accused did not take steps to send those two documents for Crl.R.P No.529 OF 2003 3 expert's opinion. Therefore, the learned Magistrate found that there is no acceptable evidence to rebut the presumption under Section 139 of the Negotiable Instruments Act. The Learned Sessions Judge also found that the accused did not take steps to get those documents compared by an expert and no such request was made before the learned Sessions Judge also. 4. The learned counsel for the petitioner Sri. Madhavankutty submits that the evidence adduced by the complainant is not sufficient to prove that the cheque in question was issued by the accused in discharge of a legally enforceable debt or liability. This argument is resisted by the learned counsel for the complainant. The fact that there were transactions between the complainant and the accused was not disputed. Similarly the handing over of the signed cheques by the accused to the complainant was also not seriously disputed. The whole case of the defence was based on Exts.D2 and D3. Those documents could not be Crl.R.P No.529 OF 2003 4 proved to be the letters signed and issued by the complainant. As such the appellant failed to discharge the burden cast on him. Presumption under Section 139 of the Negotiable Instruments Act could not be rebutted by the accused. In such circumstances, I find no reason to differ from the finding concurrently rendered by the two courts. The learned counsel would now submit that the substantive sentence may be modified since the court below has already directed payment of compensation. Since the dispute was only pertaining to the discharge of the debt or liability due to the complainant, I find that sentence can be modified. In the result, Conviction is confirmed. In supersession of the sentence awarded by the court below the accused/revision petitioner is sentenced to imprisonment till the rising of the court and to pay Rs.53,000/- as compensation to the complainant. The revision petitioner is granted two months time to pay/deposit the amount of compensation and also to receive the sentence of Crl.R.P No.529 OF 2003 5 imprisonment till the rising of the court. N.K.BALAKRISHNAN, JUDGE mns