IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1569 of 2006() --------------------------------------- CRA.61/2002 of COURT OF THE ADDL. SESSIONS JUDGE (ADHOC) II KASARAGOD CC.367/1998 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------------- B. IMAM ALI, AGED 40 YEARS, S/O.CHAPPAKKAL ABDURAHIMAN HAJI, AZAD MANZIL, BELLUR, MOGRAL PUTHUR KASARAGOD DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS/RESPONDENT/COMPLAINANT : ------------------------------------------------------------------- 1. PRASANNA VIJAYAN NAMBIAR, W/O.VIJAYAN NAMBIAR, REP. BY POWER OF ATTORNEY HOLDER VIJAYAN NAMBIAR. 2. STATE OF KERAALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKER - R2 ADV. SRI.M.SASINDRAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1569 of 2006() ORDER ON CRL. APPL. NO. 4350 OF 2006 IN CRL. R.P. NO. 1569 OF 2006 DISMISSED SD/- M.N.KRISHNAN, JUDGE 27.11.2008 // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- CRL.R.P.No. 1569 OF 2006 --------------------------------- Dated this the 27th day of November, 2008 ORDER This Criminal Revision Petition is preferred against the judgment in Crl. Appeal No. 61/2002 of the Additional Sessions Judge (Adhoc) II, Kasaragod. The appeal was preferred against the conviction and sentence passed by the Chief Judicial Magistrate, Kasaragod in C.C. 367/98. The learned Magistrate found the accused guilty under Section 138 of Negotiable Instruments Act and sentenced him to undergo Simple Imprisonment for ten months. In appeal the conviction was sustained and the sentence was modified to Simple Imprisonment for three months and compensation of Rs. 1,20,000/- and in default, Simple Imprisonment for one month. It is against that, the present revision is preferred. 2. Heard the learned counsel for revision petitioner as well as the respondent. It is the case of the complainant that the accused who had borrowed a sum of Rs. 1,20,000/- and towards discharge of that liability had issued a cheque, which when presented for encashment was returned with an endorsement of 'stop payment'. Crl. R.P. No. 1569/2006 -2- Statutory notice was issued which returned unclaimed. Thereafter prosecution was initiated under Section 138 of the Negotiable Instruments Act. The defence is of a total denial of everything including the signature in the cheque. The contention of the accused appears to be that he had lost cheque leaves which had come into the possession of the complainant and he had misused it for the purpose of filing the case. In the trial court PW1 and DW1 were examined and Ext. P1 to P8 were marked. The learned counsel for the revision petitioner strongly contends that when the very issuance of a cheque is disputed then being a penal law, the burden squarely lies on the complainant to establish that a cheque had been issued towards the discharge of the liability, which when presented for encashment had been returned. The case of the defence is that he had lost the cheque leaves which had not been even signed and it is used by the complainant to initiate the case. The matter has been considered and discussed by the courts below. The appellate court in para 9 of the judgment had found that PW1 had given evidence that the signature in Ext. P1 cheque was put by the appellant (the accused) in the presence of that witness as well as the 1st respondent, who is the complainant in this case. It is Crl. R.P. No. 1569/2006 -3- further observed that the above evidence of PW1 has not been specifically challenged during the course of cross examination. PW1 admittedly is a person competent to speak about the execution of the cheque. When he tenders evidence and that has not been seriously challenged, then a request made by the accused at a later point of time to send the cheque for verification was dismissed by the trial court on the ground that the intention is only to protract the proceedings. The learned counsel for the revision petitioner would contend that even recently the apex court had held that there is no presumption regarding the execution of a cheque under Section 138 of the Negotiable Instruments Act. There cannot be any quarrel about that proposition. It is now settled by the Catena of decisions that in a 138 case, when the accused who is not under an obligation to let in any evidence, adduces evidence then the court is competent to consider that evidence also and analyse the evidence of PW1 and then to find out the preponderance of probability to find out who is more truthful and whose evidence can be believed. It has been also held in large number of decisions that it is quality of the evidence that materials which has to be looked into a criminal case. Now it is very difficult to believe a case that a Crl. R.P. No. 1569/2006 -4- person losses so many cheque leaves, but keeps silent without complaint to any authority regarding the loss of cheque leaves, but just gives an intimation to the bank to stop the payment. This conduct itself would show that all is not well and really the cat is out of the bag. So it was this back drop, the courts below analysed the evidence of PW1 to find the truth. The courts below were convinced that his evidence is believable to prove the execution of the cheque. I do not find any perversity, illegality or irregularity committed by the courts below in arriving at a decision on the basis of that evidence. Therefore I decline to interfere with the finding of guilt under Section 138 of the Negotiable Instrument Act. 3. So far as the sentence is concerned, the appellate court has convicted the revision petitioner and sentenced him to undergo Simple Imprisonment for three months and to pay Rs. 1,20,000/- as compensation, in default to undergo Simple Imprisonment for one month. If he is really interested in making the payment, I feel leniency can be shown and therefore I am inclined to modify the sentence of imprisonment to one day that is till the rising of the court but convert the compensation to that of fine with default sentence which on realisation be disbursed to the complainant. Crl. R.P. No. 1569/2006 -5- In the result, Criminal Revision Petition is disposed of as follows: 1. Conviction under Section 138 of Negotiable Instrument Act is sustained. 2. The Revision Petitioner is sentenced to undergo Simple Imprisonment for one day that is till the rising of the court and to pay a fine of Rs. 1,20,000/- which on realisation shall be disbursed to the complainant and in default, revision petitioner shall undergo Simple Imprisonment for a period of one month. 3. The revision petitioner shall present himself before the trial court to receive the sentence and pay the fine on 16.2.2009, failing which the trial court shall execute the sentence. 4. If any amount deposited by way of compensation, it shall be treated as part of fine and let it be disbursed to the complainant on appropriate application. The Criminal Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm