IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 956 of 2005(D) ------------------------------------------ CRL.A. NO.452/2003 OF II ADDL. SESSIONS COURT, PALAKKAD, CC.NO. 393/2001 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER/ APPELLANT/ ACCUSED: ---------------------------------------------------------------- P.V.SYEDALI, FAIZAL HOUSE, NURANI, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K, ADV. SRI.LIJU. M.P. RESPONDENT- RESPONDENT-COMPLAINANT/ RESPONDENT - NON.PARTY: ------------------------------------------------------------------------------------------------------------- 1. B.KISHORE KUMAR, S/O. LATE BHOJARAJ, GEETHA BHAVAN, BIG NAZAR, PALAKKAD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.JACOB SEBASTIAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== Crl.R.P. No.956 OF 2005 ===================== Dated this the 25th day of November 2008 ORDER This revision petition is preferred against the judgment in Crl.A.No.452/2003 of the Sessions Court, Palakkad. The said judgment was rendered against the conviction and sentence passed in CC No.393/2001 of the Judicial I Class Magistrate Court-III, Palakkad. It was an action under Section 138 of the Negotiable Instruments Act whereby the trial court convicted the accused to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.95,000/- and in default, the accused shall undergo simple imprisonment for a further period of 1 ½ months. It is against that decision the appeal was preferred and the learned Sessions Judge dismissed the appeal. 2. Now the revision petition is preferred against the said judgment. It is the case of the complainant that he joined in a kuri conducted by the petitioner and for the amount due under the kuri, a cheque for Rs.95,000/- was issued and which when presented for encashment, returned with the endorsement 'insufficiency of funds'. A notice was issued and thereafter CRL.RP 956/2005 -:2:- prosecution under Section 138 had been launched. On the other hand, the contention of the revision petitioner appears to be that there was no issuance of a cheque as contended in the complaint, but there was some business transaction between the father of the petitioner and the complainant and the son of the petitioner had handed over a blank signed cheque to the complainant which had been made use of for the purpose of creating the cheque to initiate prosecution. 3. Heard the learned counsel on both sides. PW1 is the complainant. He had deposed in terms of the complaint and he had deposed that he had joined the kuri and paid the amount and it was towards the discharge of that liability Ext.P1 cheque had been issued. The defence appears to be that it was in connection with some business transaction. The son of the petitioner had given a cheque signed by his father to the complainant. DW1 has admitted that he was conducting a kuri. Further it is contended that there is difference in writing on the body of the cheque and the signature. It was conceded by PW1 also. The courts below rightly held that there was no such suggestion put to PW1 when he was in the box and therefore the version given by DW1 would not improve the case. A signature was obtained from the court as Ext.C1, but as no other admitted signature was produced by the revision petitioner, the comparison of handwriting under CRL.RP 956/2005 -:3:- Section 73 was also not done. It has also come out in evidence that there are about 4 or 5 cases against the petitioner with respect to these type of transactions. Both the courts below had analysed the evidence and had arrived at a decision that the complainant had succeeded in proving that Ext.P1 has been executed and handed over to the complainant. When the execution is proved, then it amounts to the proof of transaction and when the transaction is proved, presumption under Sections 118 and 139 of the NI Act will come. Learned counsel for the petitioner had referred to the decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya Hegde (2008(1) KLT 425(SC) and what has been held therein is that the existence of legally recoverable debt is not a matter of presumption under Section 139. So the Apex Court made it very clear that there cannot be any presumption regarding the transaction but when the transaction is proved, then the presumption will arise. There cannot be any bar for such presumption in view of Sections 118 and 139 of the NI Act. So, both the courts below after analysing the materials had arrived at a decision that the case of the complainant is true and that the accused, viz., the revision petitioner had executed a cheque in favour of the complainant towards the discharge of the liability then there is nothing wrong in drawing the presumption also for the purpose of deciding the case. I do not find any CRL.RP 956/2005 -:4:- perversity, illegality or irregularity in the decision taken by the courts below. I sustain the finding of guilt under Section 138. 4. So far as sentence is concerned, the trial court has ordered the accused to pay a compensation of Rs.95,000/- and in default to undergo simple imprisonment for a further period of 1 ½ months. I am inclined to reduce the sentence to undergo imprisonment for one day, i.e. till the raising of the court and to pay a fine of Rs.95,000/- which on realisation be disbursed to the complainant in the case. In case of default, the revision petitioner has to undergo simple imprisonment for a period of one month. In the result, the Crl.Revision Petition is disposed of as follows:(1) The conviction under Section 138 of the NI Act is sustained.(2) The sentence is modified and the petitioner is directed to undergo simple imprisonment for a day, i.e. till the raising of the court and to pay a fine of Rs.95,000/- which on payment or recovery shall be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for one month.(3) The petitioner shall present before the trial court to receive the sentence and for payment of fine on 16.2.2009, failing which the trial court shall execute the sentence. If any amount is deposited that shall be treated as a part of fine and it shall be disbursed to CRL.RP 956/2005 -:5:- the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-