IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Crl.Rev.Pet.No. 1676 of 2007() ------------------------------ CRA.279/2003 of I ADDL. SESSIONS COURT, KOLLAM CC.9/2001 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.VIJAYAN, AMBALATHIL VEEDU, CHATHANNOOR THAZAM VADAKKU, MAMPALLY KUNNUM CHERRY MEENADU VILLAGE. BY ADV. SMT.T.S.MAYA (THIYADIL) RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. J.SUDARSANAN, GOOD MORNING HOUSE, CHATHANNOOR THAZHAM VADAKKU, MEENADU VILLAGE. ADV. SRI.A.MOHAMED MUSTAQUE FOR R2 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.1676 of 2007 ---------------------------------------- Dated this the 16th day of November 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. The cheque is for an amount of Rs.75,000/-. It bears the date 13/10/2000. The petitioner now faces a sentence of simple imprisonment for a period of six months and to pay an amount of Rs.75,000/- as compensation and in default to undergo S.I for a period of one month. No default sentence is seen imposed by the courts below. 2. The complainant is the brother-in-law of the revision petitioner/accused. According to the complainant, an amount of Rs.75,000/- was borrowed by the revision petitioner/accused and for discharge of the said liability, Ext.P1 post dated cheque for Rs.75,000/- was issued to him. The cheque, when presented, was dishonoured by the bank on the ground of insufficiency of funds. Notice of demand was duly issued. It was acknowledged; but did not evoke any response. After following the statutory time table scrupulously, the complainant came to court with a complaint under Section 138 of the Negotiable Instruments Act. Crl.R.P.No.1676/07 2 Cognizance was taken. The accused appeared before the learned Magistrate. The complainant examined himself as PW1 and proved Exts.P1 to P8. 3. The accused, in the course of cross-examination of the complainant and when examined under Section 313 Cr.P.C, admitted that the cheque was signed and handed over to the complainant. But, according to him, the cheque was not issued for the due discharge of any legally enforcible debt/liability. According to the accused, the complainant and the accused are close relatives (brothers-in-law). There were disagreements between the complainant and the accused. The complainant had contracted a third marriage and the wife of the accused - that is the sister of the complainant had raised objections against the same. She had allegedly tendered evidence against the complainant in a prosecution for matrimonial cruelty. Because of these, the complainant, making use of his influence with the police, had compelled the revision petitioner to sign and hand over a cheque. The said cheque is being misutilised by the complainant. This, in short, is the defence. The accused examined a witness - Circle Inspector of Police, Chathannoor as DW1. Ext.D1 - the relevant page of the petition register was also marked. Ext.D1 shows that the accused had lodged a complaint Crl.R.P.No.1676/07 3 that the complainant was called to the police station and both were warned. No other defence evidence was adduced. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I.Act. Accordingly they proceeded to pass the impugned concurrent judgments. 5. Called upon to explain the nature of the challenge, which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the revision petitioner assails the impugned verdict of guilty and conviction on various grounds. 6. First of all, it is contended that the cheque has not been proved to be one issued for the due discharge of any legally enforcible debt/liability. The mere admission of the signature in the cheque cannot be equated to proof of execution of the cheque. Inasmuch as the execution of Ext.P1 cheque has not been satisfactorily proved, the case of the complainant must fail and the presumptions under Sections 118 and 139 of the Negotiable Instruments Act cannot enure to the benefit of the complainant, contends the learned counsel for the petitioner/accused. Crl.R.P.No.1676/07 4 7. First of all, it must be noted that we have primarily the evidence of PW1 about the circumstances under which the cheuqe happened to be issued by the accused to the complainant. The oral evidence of the complainant as PW1 is eminently supported by his ability to produce Ext.P1 cheque which admittedly bears the signature of the accused. It is not disputed that the cheque is drawn on a cheque leaf issued to the complainant by his bank to operate his account. The evidence of DW1 and Ext.D1 cannot, at all, indicate that any blank signed cheque was issued by the accused to the complainant at the police station as contended by the revision petitioner/accused. Inherently, the defence raised by the accused is improbable and artificial. He was the complainant in Ext.D1 and the complainant/payee was called to the police station by the police. It sounds artificial that the police, in such situation, compelled the accused to execute the cheque in favour of the complainant. 8. Be that as it may, the conduct of the accused, after he was allegedly constrained under duress to part with the cheque to the complainant, is too artificial and improbable to be swallowed. Significantly, the accused does not raise any complaint against the police officer or the complainant. It is significant further that the accused does not inform his bank that Crl.R.P.No.1676/07 5 he has been compelled to part with the cheque in question. It is the very specific case of the complainant that the cheque, though handed over on 27/05/2000, was a post dated one and bore the date 13/10/2000. Till 16/10/2000, when the cheque was presented for encashment, the accused did not admittedly raise his little finger against the alleged conduct of the complainant obtaining the cheque from him under duress. 9. After the cheque was dishonoured, Ext.P3 notice of demand was issued by the complainant to the accused. It was acknowledged under Ext.P4. There is no dispute about the services of the notice of demand on the complainant in the course of trial or in the 313 examination. Receipt of the notice of demand is specifically admitted in 313 examination. Even on receipt of the notice, the conduct of the petitioner/accused is of crucial relevance. He does not deny the averments in Ext.P3. He does not choose to issue any reply to Ext.P3. The inaction/absence of response on the part of the accused is, in these circumstances, found to be crucial and knocks the bottom out of the theory laboriously advanced by him that the cheque was obtained from him under duress. 10. The oral evidence of PW1 proves execution of the cheque. It is true that admission of signature is not equivalent to Crl.R.P.No.1676/07 6 admission of execution. But the presence of the signature in the cheque admittedly is a crucial circumstance which can go a long way to help the complainant to prove his case. In the absence of better explanation, the admission of signature is a circumstance which can be taken into account by a court while choosing between the versions of the rival contestants. Of course, the burden always rests on the complainant to prove his case satisfactorily. The mere fact that the defence has not offered a specific explanation, cannot, ipso facto, lead to proof of execution of the cheque. The totality of the circumstances will have to be considered and when so considered, I find no hesitation to agree with the courts below that the cheque in question was executed by the accused and issued for the due discharge of a legally enforcible debt/liability. The evidence of DW1 and Ext.D1 cannot take the accused anywhere as that only shows that, at the instance of the accused who lodged a complaint before the police, the complainant was called to the police station. 11. The execution of the cheque, when proved, brings with it a train of presumptions under Sections 118 and 139 of the Negotiable Instruments Act . Thereupon, the burden shifts to the accused to rebut the presumption under Sections 118 and Crl.R.P.No.1676/07 7 139 of the Negotiable Instruments Act. To rebut this presumption, it is not necessary that the accused must mount the witness stand. He can rely on the materials available in the case including the answers given by the complainant in cross- examination. In any view of the matter, I am satisfied that the burden on the accused remains undischarged. 12. In these circumstances, I turn down the challenge raised against the impugned verdict of guilty and conviction on merits. The challenge fails. 13. It is next contended that the sentence imposed is excessive. The respondent/complainant has been served. There is no representation for the respondent. The complainant has been compelled to fight three rounds of legal battle and to wait for more than nine long years for the redressal of his grievance. The complainant has been compelled to initiate civil proceedings also for recovery of the amount due to him. That civil proceedings has already ended in a decree, it is conceded by the learned counsel for the revision petitioner. 14. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in the decision reported in Anilkumar v. Shammi [2002 (3) KLT 852]. I am not persuaded to agree that there are any Crl.R.P.No.1676/07 8 compelling reasons which can persuade this court to insist on the deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence; but it will zealously have to be ensured that the complainant is adequately compensated. The challenge against the sentence succeeds only to the above extent. 15. In the result, a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I Act are upheld is upheld. c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.90,000/- (Rupees ninety thousand only) as compensation. The amount can be paid directly to the complainant and joint statement filed before court or deposited before the court below. If paid, Rs.75,000/- (Rupees seventy five thousand only) shall be credited towards the principal amount due and the balance of Rs.15,000/- shall be credited as compensation for the trauma endured by the complainant to fight three rounds of legal battle in this criminal prosecution. The principal amount of Rs.75,000/- Crl.R.P.No.1676/07 9 shall be credited towards the liability for the principal amount under the civil decree which is said to exist. 16. In default of payment of compensation, the petitioner shall undergo S.I for a period of three months. The petitioner shall have time till 16/01/2010 to make the payment and to avoid the default sentence. Modified sentence hereby imposed shall not be executed till 16/01/2010. On or before that date, the petitioner shall appear and the sureties shall produce him before the learned Magistrate to undergo the modified sentence hereby imposed. If payment is not made by 16/01/2010, the modified sentence can be executed by the learned Magistrate. (R.BASANT, JUDGE) jsr Crl.R.P.No.1676/07 10 Crl.R.P.No.1676/07 11 Crl.R.P.No.1676/07 12 R.BASANT, J Crl.R.P.No.504 of 2001 ORDER 17th DAY OF JUNE 2001 Crl.R.P.No.1676/07 13 Crl.R.P.No.1676/07 14