IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 4050 of 2008(A) ------------------------------ CRA.624/2006 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.449/2004 of JUDL.MAGISTRATE OF FIRST CLASS, HARIPAD .................... REVN. PETITIONER: APPELLANT/ ACCUSED ------------------------------ K. MOHANDAS, AGED 52 YEARS, S/O. LATE KUMARAN, KRISHNALAYAM HOUSE, MAHADEVIKAD.P.O, KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK. BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) RESPONDENT(S): RESPONDENTS -------------------------- 1. HAREESH BABU, S/O. RETHAN, KAILAS HOUSE, PILAPPUZHA MURI, HARIPAD VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.PRAKASH P.GEORGE FOR R1 SRI.AMJAD ALI, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON 25/11/2009 PASSED THE FOLLOWING: JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. R.P. NO:4050 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th Day of November, 2009. O R D E R The petitioner is the accused and the 1st respondent is the complainant in C.C. No. 449/2004 of the Judicial First Class Magistrate Court, Haripad. The 1st respondent filed private complaint for the offence punishable under Section 138 of the Negotiable Instruments Act on the allegation that the petitioner borrowed Rs.3,00,000/- from him and that when he demanded back the amount, the petitioner issued Ext.P1 cheque for the discharge of his debt. When the 1st respondent presented the cheque in the bank for encashment, it returned with the endorsement “no sufficient funds in the account” and in spite of the notice of demand, the Crl. R.P. NO:4050 OF 2008 :2: petitioner has not paid the amount. The 1st respondent filed C.C. No.449/2004 against the petitioner under Section 138 of the Negotiable Instruments Act. 2. The petitioner appeared before the trial court and pleaded not guilty. The 1st respondent thereupon examined himself as PW1 and marked Exts.P1 to P6 and the petitioner examined DW2, 1 to 3 and marked Exts.D1 to D6. The trial court after considering the evidence and hearing both sides found the petitioner guilty under Section 138 of Negotiable Instruments Act and convicted and sentenced him to undergo simple imprisonment for six months and directed him to pay a compensation of Rs.3,00,000/- to the 1st respondent under section 357(3) of the Code of Criminal Procedure, in default to undergo simple imprisonment for a further period for six months. Against the above conviction and sentence, the petitioner filed Cr. Appeal No.624/2006 before the Additional Sessions Judge II, Mavelikkara and on 30.5.2008 the appellate court dismissed the appeal by confirming the conviction and sentence Crl. R.P. NO:4050 OF 2008 :3: passed by the trial court. 3. Against that judgment, the accused filed this Crl.R.P. 4. Heard the learned counsel for the revision petitioner. 5. The learned counsel for the revision petitioner invited my attention to the decision of this court reported in Jose v. Joy (2008(3) KLT 512), in which it is held that the probability of the prosecution case does not depend upon improbability or falsity of defense case. It is true that falsity of defence canvassed by the accused itself is not sufficient to improve the case of the complainant. But in examining the merits of the case, advanced by the complainant and in appreciating his sworn testimony, the falsity of defence set up by the accused has to be taken into consideration in forming a conclusion whether the case of the complainant deserves acceptance. 6. The learned counsel for the revision petitioner relying on the decision of this court reported in Gopan v. Tonny Varghese (2008(1) KLT 257), argued that merely because the cheque Crl. R.P. NO:4050 OF 2008 :4: contained the signature of the accused, it cannot be said that the cheque was drawn by the accused as contemplated by Section 138 of Negotiable Instruments Act. The learned counsel for the revision petition invited my attention to the decision reported in Sanjay Mishra v. Ms. Kanishka Kapoor @ Nikki and another (2009(2) KLD 825 (Bom.), in which it was held that non-disclosure of the amount advanced to the accused is not shown by the complainant in his Income Tax returns or books of accounts is sufficient to rebut the presumption under Section 139 of Negotiable Instruments Act. That decision is not applicable to the facts of this case as the accused in the present case has not asked the complainant to produce his accounts books or income tax returns, while examining the complainant as PW1 and no question was asked him about these aspects. 7. To prove the case of complainant, he himself is examined as PW1. PW1 deposed that he has acquaintance with the accused and that on 15.12.2002, the accused came to his house and Crl. R.P. NO:4050 OF 2008 :5: demanded Rs.3,00,000/- by way of loan and he paid that amount to the accused on 20.12.2002 and when he demanded back that amount, the accused issued Ext.P1 cheque for that amount and when he presented that cheque for encashment, it was dishonoured due to the reason that “insufficiency of fund in the account of the accused”. Ext.P2 is the dishonour memo and Ext.P3 is the intimation dated 3.3.2003. PW1 issued demand notice to accused intimating about the dishonour of the cheque and demanded back the amount. Ext.P4 is the copy of that demand notice. Ext.P5 is the postal receipt and Ext.P6 is the postal acknowledgment. PW1 deposed that even after the receipt of the demand notice, the accused did not pay back the amount and that he has not sent any reply. 8. The defence case is that the father of PW1 is conducting a chitty business and the accused was a subscriber to that chitty and when the accused bid the chitty, he issued blank signed cheques signed as the security and by misusing one of such blank the cheques the complainant filed the above complaint. For proving the Crl. R.P. NO:4050 OF 2008 :6: defence case, the accused examined DW1 to DW3 and marked Exts. D1 to D6. DW1 is the father of the complainant. DW1 admitted that there was a chitty transaction between himself and the accused. But he denied the suggestion that blank cheques were collected as the security. DW2 is the friend of the accused. DW2 deposed that he used to remit the chitty installments of the accused. But he has no case that he saw accused handing over any blank cheque to DW1. The accused himself is examined as DW3. DW3 deposed that he had chitty transaction with DW1 and that he bid the chitty on 30.1.1996 and he issued a blank cheque bearing No: 665792 of Catholic Syrian Bank, Thattarambalam branch, as security. According to DW3, he used to make entries in the counter foil of the cheque book showing as to whom each cheque was issued and in the counter foil of Ext.D3 cheque book there is an entry showing that Ext.P1 blank cheque was given to DW1 on 30.1.1996. Ext.D6 is the bank pass book relating to the account of the accused. On verification of the entries in Ext.D6 pass book with the Ext.D3 Crl. R.P. NO:4050 OF 2008 :7: cheque book in the name of the accused, it is seen that the entries in cheque record slip of Ext.D3 cheque book do not tally with the entries made in the Ext.D6. Therefore the case of the accused that Ext.P1 cheque was given to DW1 on 30.1.1996 as security to the chitty transaction cannot be accepted as true. This fact strengthens the case of the complaint that the accused issued Ext.P1 cheque for the amount of Rs.3,00,000/- borrowed from him. 9. The courts below have concurrently found that Ext.P1 cheque was drawn by the accused in favour of the complainant on receiving the consideration and that the complainant had a validity complied with the provisions of Section 138 of Negotiable Instruments Act and that the accused failed to make payments within 15 days of receipt of statutory notice. Both the courts have considered and rejected the defence set up by the accused while entering conviction. That conviction has been recorded after careful evaluation of the oral and documentary evidence on record. Therefore I do not find any error, illegality or impropriety in the Crl. R.P. NO:4050 OF 2008 :8: conviction so recorded concurrently by the courts below an same is hereby confirmed. 10. The learned counsel for the revision petitioner submitted that if for any reason the revision petitioner is found guilty the sentence may be reduced. Considering the facts and circumstances of the case, I am of the view that a substantiative sentence of imprisonment till rising of the court would be sufficient to meet the ends of justice particularly in view of the fact that adequate compensation has been awarded. Accordingly this Crl.R.P. is allowed in part. The conviction of the accused in C.C. No: 449 of 2004 on the file of Judicial First Class Magistrate, Haripad under Section 138 of the Negotiable Instruments Act is confirmed. The sentence to undergo simple imprisonment for six months under Section 138 of Negotiable Instruments Act is reduced and accused is sentenced to undergo imprisonment till the rising of the court. The order to pay compensation of Rs.3,00,000/- to the complainant under Section Crl. R.P. NO:4050 OF 2008 :9: 357 (3) of Code Criminal Procedure in default to undergo simple imprisonment for six months is confirmed. Judicial First Class Magistrate, Haripad is directed to execute the modified sentence. M. L. JOSEPH FRANCIS, JUDGE. dl/