IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 20TH MAY 2011 / 30TH VAISAKHA 1933 Crl.Rev.Pet.No. 1320 of 2011 ---------------------------------------- [CRL.A.NO.268/2009 OF ADDITIONAL SESSIONS COURT, (FAST TRACK COURT NO.II -ADHOC), THRISSUR, ST.NO.1316/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- SANTHOSHKUMAR, S/O KUMARAN, VALAPARAMBIL HOUSE, NEAR PADATHALAKULAM, KOORKKENCHERY, THRISSUR. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADVS. SRI.P.M.RAFIQ, SRI.V.C.SARATH. RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. HEERA SAMEER, S/O IBRAHIM, HEERA HOUSE, VADOOKKARA, KOORKKENCHERY, THRISSUR – 680 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. N.K. BALAKRISHNAN, J. = = = = = = = = = = = = = = Crl.R.P. NO. 1320 OF 2011 = = = = = = = = = = = = = = = Dated this the 20th day of May, 2011 O R D E R In this Revision Petition filed under Section 397 read with Section 401 Cr.P.C the petitioner who was the accused in S.T.1316/05 on the file of the Judicial First Class Magistrate-II, Thrissur challenges the conviction entered and the sentence passed against him for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs.2,26,600/-. The amount of compensation ordered by the lower appellate court is Rs.2,26,600/-. 2. I heard the learned counsel appearing for the Revision Petitioner and the learned Public Prosecutor. 3. Learned counsel for the revision petitioner has argued in detail and with vehemence that the complainant has not proved due execution of cheque and passing of consideration and that the Courts below have only found Crl.R.P. NO. 1320 OF 2011 -:2:- fault with the evidence given by the petitioner as DW1. Learned counsel further submits that simply because the signature of the revision petitioner appears on Ext.P1 cheque the Court cannot jump to the conclusion that execution of Ext.P1 cheque could be proved by the complainant. The evidence that may have to be adduced by the defence to rebut the presumption u/s 139 of N.I.Act need not be to prove the defence beyond reasonable doubt. The accused can discharge the burden by preponderance of probabilities. 4. First of all the question to be considered is whether execution of Ext.P1 cheque could be proved by the complainant. Admittedly Ext.P1 was signed by the petitioner. PW1 has given evidence that it was executed and handed over to him by the petitioner to discharge the liability of Rs.2,20,000/- which was borrowed by the petitioner(DW1) undertaking to repay the amount with interest at 12% per annum within three months from the date of borrowal of the amount. On the other hand the case put forwarded by the petitioner is that he had bid a chitty conducted by Clair Chit Crl.R.P. NO. 1320 OF 2011 -:3:- Company and at that time he had handed over eight blank signed cheque leaves to that Chit Company. If the cheques were issued to the Chit Company mentioned above there was no reason why payee's name was not shown as Clair Chit. PW1 and DW1 were the Directors of that Chit Company. Except the interested oral version of DW1 no other evidence was adduced by him to prove the chitty transaction. There was no difficulty for the petitioner to cause production of the records from the Chit Company especially since he was one of the Directors of that Chit Company. It is also pertinent to note that even after DW1 retired or withdrew from that Chit Company he did not send any notice to the Chit Company to return the eight cheque leaves alleged to have been given to that Chit Company when he bid the chitty. These aspects would improbabilise the case set up by the petitioner. 5. It is also contended by the petitioner that he had introduced one Balan to the complainant and based on that the complainant had advanced an amount of Rs.25,000/- to that Balan. Balan subsequently committed suicide. According Crl.R.P. NO. 1320 OF 2011 -:4:- to the petitioner the complainant wanted the petitioner to pay the amount borrowed by Balan and since he did not heed to that demand, the complainant misutilised one of the cheque leaves given to the Chit Company to foist this case. These contentions remain in the realm of suggestion alone. The Courts below found that the evidence given by PW1 that the petitioner had borrowed Rs.2,20,000/- from the complainant on 28.4.2004 and to discharge that liability, including interest accrued thereon Ext.P1 cheque for Rs.2,26,600/- was issued by the petitioner on 28.7.2004 is true. 6. It was concurrently held by the courts below that when the cheque in question drawn by the petitioner in favour of the complainant was presented for encashment it was dishonoured due to insufficiency of fund. There was due compliance of Clauses (a) and (b) of the proviso to Section 138 of the Act. Admittedly the revision petitioner did not pay the cheque amount on receipt of the statutory notice. The courts below have analysed the evidence let in by the Crl.R.P. NO. 1320 OF 2011 -:5:- prosecution and also considered the defence set up by the revision petitioner. It is seen that a careful evaluation of the entire oral and documentary evidence has been done by the courts below. Hence this Court will not be justified in interfering with the findings of fact concurrently recorded by the courts below. There is no illegality, incorrectness or impropriety in the conviction so recorded concurrently by the courts below. Hence conviction is confirmed. 7. Since the revision petitioner was sentenced only to imprisonment till the rising of the court and to pay Rs.2,26,6000/- as compensation. It requires no interference by this Court. Hence this revision petition is dismissed. However, the revision petitioner is granted four months time to pay the amount of compensation. Sd/- N.K. BALAKRISHNAN,JUDGE. ul/- [ true copy ] P.A. to Judge.