IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.Rev.Pet.No. 297 of 2002(C) ------------------------------ CRA.499/2000 of ADDL.SESSIONS COURT, `NORTH PARAVUR CC.1104/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------ P.N.SELVARAJ, KAROTHU PARAMBU HOUSE, HOUSE NO.14, WARD NO.27, TRIPUNITHURA. BY ADV. MR.JOHNSON MANAYANI RESPONDENT(S): RESPONDENT-COMPLAINANT AND STATE: -------------------------------------------------------------------------------------------- 1. N.P.BABU, NELLIKKAL HOUSE, NEAR BUS STAND, ALUVA. 2. STATE OF KERALA,REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. MR.DINESH MATHEW J.MURICKEN R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.2271/2002 IN CRRP.NO.297/2002 DISMISSED 23/03/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.297 OF 2002 () ----------------------------------- Dated this the 23rd day of March, 2009 O R D E R The accused, who has suffered concurrent verdict of guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the 'N.I.Act', has filed this revision, questioning the legality, propriety and correctness of the conviction and sentence rendered against him by the learned Magistrate and upheld by the learned Sessions Judge in appeal. On his conviction, the learned Magistrate sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.1000/- with default term of simple imprisonment for one month more, which was upheld by the Sessions Judge in appeal, without any modification. 2. The case of the complainant is that, towards discharge of a debt, the accused issued Ext.P1 cheque for a CRL.R.P.297/02 2 sum of Rs.40,000/-, promising its encashment on presentation in due course. The cheque presented, however, was dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour of the cheque and demanding the sum covered by the instrument was acknowledged, but not responded with reply or any payment. The complainant, thereupon, launched prosecution for the offence under Section 138 of the N.I.Act against the accused. 3. The accused pleaded not guilty when the particulars of the offence were made known. The complainant examined himself as PW1 and a Bank official as PW2. He also got marked Exts.P1 to P6 to prove his case. The accused, when questioned under Section 313 of the Cr.P.C., reiterating his plea of innocence, advanced a defence that the cheque was issued as a security, and more particularly for collecting the loan amount from a Co-operative Bank on the promise by the complainant, that he would arrange such a loan. He had a previous transaction with the complainant for a sum of Rs.10,000/- agreeing to pay interest of Rs.500/- per month, CRL.R.P.297/02 3 and that transaction was closed by him, is the version of the accused. He would state that raising an allegation that the transaction was not closed, and still, an amount of Rs.3000/- was due from him, the complainant filed a complaint before the Police, and pursuant to the intervention of the Police and mediation, directing him to pay Rs.3000/- for settling the transaction, he paid a sum of Rs.1000/-. He could not pay the balance amount of Rs.2000/- in view of his financial difficulties. Thereupon, the complainant represented that he would arrange a loan for Rs.15,000/- from a Bank to settle the transaction, and on that pretext, he collected Ext.P1 cheque in blank form with the signature alone and also a blank paper affixed with two revenue stamps, over which also his signature was obtained. A month later, he was informed that the loan was not passed by the Bank. The complainant refused to hand over the cheque and the blank signed stamp paper demanding repayment of the sum of Rs.2000/- under the previous transaction, and settling of that transaction. To prove the defence so canvassed, the accused examined two witnesses including himself as DW1 and DW2, and got marked Exts.D1 to D5. CRL.R.P.297/02 4 4. The learned Magistrate, after having anxious consideration of the materials tendered, found no merit in the defence canvassed by the accused. In the proved facts and circumstances of the case, as borne out by the materials, the accused was found guilty and convicted of the offences indicted against him. As already indicated, the Sessions Judge, in appeal, confirmed the conviction. 5. Assailing the conviction, the learned counsel for the revision petitioner/accused urged before me that the defence canvassed by the accused was not appreciated by both the courts below in the proper perspective, and it has resulted in miscarriage of justice. Inviting my attention to the admission of the complainant, while he was subjected to cross examination, the learned counsel submitted that the case set up by the defence that there was a previous transaction between the complainant and the accused is amply proved. The admission of the complainant that there was a complaint before the Police for settlement of the money transaction was also pressed upon by the counsel to contend that the defence CRL.R.P.297/02 5 canvassed by the accused that the cheque was given as security to a loan transaction from a bank ought to have been found true and correct. The documentary materials tendered by the accused to substantiate his defence was not given due consideration by both the courts, is the grievance raised by the counsel. The accused, while setting up a defence, need only show that the version presented by him is probable, and no burden is cast upon him to prove his version with certainty, beyond the shadow of doubt, as is expected from the side of the prosecution. The sworn testimony of the accused as DW2, corroborated by the evidence of DW1, an independent witness, coupled with the admission of the complainant as PW1, that there was a previous transaction, substantiated by the documents produced and exhibited as D1 to D5, according to the learned counsel, lead to a conclusion that the defence of the accused is more probable and acceptable. The conviction of the accused, in the aforesaid circumstances it is submitted is liable to be set aside. On the other hand, the learned counsel for the complainant submitted that both the courts below have appreciated the materials in the correct perspective and the CRL.R.P.297/02 6 findings entered thereof, do not warrant any interference. A solitary sentence in the evidence of the complainant, which at the most would show that there was a previous transaction between the accused and the complainant would no way assist the accused to prove his defence that Ext.P1 cheque involved in the present case was issued as a security, is the submission of the counsel. The materials tendered by the accused are hardly sufficient to show that the defence canvassed is probable or acceptable, and so much so, there is no scope for any interference in the conviction and sentence, submits the counsel. 6. Having regard to the submissions made by the counsel on both sides and perusing the records of the case, bearing in mind that the scope of interference with the findings entered by the inferior courts by exercising revisional jurisdiction is limited and permissible only where it is shown that the findings are perverse and could not have been so formed on the materials tendered. I find the attack against the conviction of the accused on the ground that the defence canvassed was not properly appreciated, cannot be accepted CRL.R.P.297/02 7 for more than one reason. Statutory notice was issued by the complainant intimating dishonour of the cheque and demanding sum covered by that instrument before launching the prosecution against him under Section 138 of the N.I.Act. The notice was not responded is a circumstance that has to be taken into account to appreciate the defence belatedly canvassed by the accused in the trial. He has not offered any proper convincing explanation why a reply was not sent setting forth the defence canvassed in the trial, if at all it was true. The exhibits produced by the accused to substantiate the defence, Exts.D1 to D5, do not inspire confidence. Exts.D1 and D2 are two passbooks in a Co-operative Society, in which according to the accused, he made remittance towards repayment of the sum availed from the earlier loan transaction with the accused. As noted by the learned Magistrate, the name of the account holder in Ext.D1 pass book was initially that of the accused, which was scored of and corrected to put the name of the wife of the complainant, who made the correction, and at what point of time, there is no evidence. No one from the bank was examined to prove that the account covered by Ext.D1 was actually in the name of the wife of the CRL.R.P.297/02 8 complainant. Prima facie, a perusal of the pass book would show that the pass book belonged to the accused. If it had been opened in the name of the wife of the complainant, there was no chance of recording the name of the accused as the account holder in that pass book. If that be the case of Ext.D1, more strange is the case of Ext.D2 pass book. Ext.D2 pass book would show prima facie that all entries are made almost simultaneously one after the other. Ext.D3 is the slip of paper showing an amount of Rs.5,269/-. That will not in any way advance the case of the accused that so much amount was due in a prior transaction with the complainant. Ext.D4 is his identity card and Ext.D5 the outer cover of his cheque book. These documents in no way proved the defence set up by the accused that he had issued Ext.P1 cheque in blank form as security to avail a loan from a Bank, at the instance of the complainant. The entry made in Ext.D5 corresponding to the cheque number of Ext.P1 is pointed out by the counsel as a circumstance indicating that the cheque was handed over on 19.12.1993 as security as canvassed by the accused. All along, Ext.D5 was in possession of the accused, and what ever entry made by him therein, at the most, has got only self CRL.R.P.297/02 9 serving value, which will not improve his case. Even assuming for argument sake that there was a previous transaction as contended by the accused between him and the complainant and that transaction was not settled for one reason or another, that by itself, is not a ground to hold that he would issue a blank signed cheque and also a blank signed paper to the complainant for getting a loan from the bank. The defence set up by the accused for acceptance must atleast be shown as probable and acceptable in the normal course of human conduct. The exhibits produced to substantiate the defence, Exts.D1 to D5 were not confronted to PW1, the complainant, when he was examined before the court. No attempt was made to confront the complainant, with those documents. If at all the accused was prevented by any reason in confronting him with those documents when examined as PW1, he could have invoked Section 311 of the Cr.P.C. for recalling the complaint. That was also not done. All the above circumstances have to be viewed in the background that the defence was advanced only in trial without even sending a reply to the statutory notice. The learned Magistrate, who had the opportunity to watch the demeanour of the complainant, CRL.R.P.297/02 10 when he was examined, found his testimony reliable and trust worthy. Having regard to the evidence of the complainant and also the materials tendered in the case, the Sessions Judge in appeal, on re-appreciating the evidence, approved the finding entered by the learned Magistrate, accepting the version of the complainant and rejecting the defence set up by the complainant. Within the narrow scope of the revisional jurisdiction, on perusing the materials, having regard to the submissions made by the counsel of both sides, I find that the findings rendered by the trial court and approved by the Sessions Judge, deserve only to be accepted. Conviction of the accused for the offences under Section 138 of the N.I.Act, deserves to be upheld, and I do so. Now coming to the question of sentence, the learned Magistrate has sentenced him to undergo simple imprisonment for three months and fine of Rs.1,000/- with default term of imprisonment for one month more, which had been approved by the Sessions Judge, in appeal. Having regard to the nature of the offence, for which accused was convicted and sentenced, I find that his incarceration in CRL.R.P.297/02 11 prison, on his conviction, in the absence of exceptional circumstance is not necessary or warranted to meet the ends of justice. The ends of justice would be served if adequate sentence with direction to pay compensation for the cheque amount is directed to be paid rather than imposing a prison term. The cheque amount of course has to be taken into account in fixing the adequate compensation payable by the accused to the complainant. Taking note of these aspects, confirming the conviction of the accused, the sentence is modified, ordering him to undergo imprisonment till the rising of the court with direction to pay compensation of Rs.45,000/- to the complainant under Section 357 (3) of the Cr.P.C. The fine amount, which is stated to have been remitted by the accused, shall also form part of the compensation awarded. That part of sentence imposing fine, passed by the Magistrate and upheld by the Sessions Judge in appeal is set aside, and amount, if any, deposited by fine shall be given credit, in the sum awarded as compensation. In default of payment of compensation as ordered, the accused shall undergo simple imprisonment for three months. The accused shall pay the compensation, as fixed above, within three months from the CRL.R.P.297/02 12 date of this order. The accused shall appear, and his sureties shall produce him before the Judicial First Class Magistrate Court, Aluva, on 1st June 2009, and the learned Magistrate shall execute the sentence as directed. The revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.297 OF 2002 (C) --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009