IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 1644 of 2006(A) ------------------------------ CRA.400/2003 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.407/2002 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P. ASHRAFF, S/O. PANDARATHODI ABOO, PANDARATHODI HOUSE, P UMMATHOOR SCHOOL PARAMBA, PAZHAMALLUR POST,MALAPPURAM. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE: ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RASIYA BANU A., W/O. V.K. IBRAHAM, NOOR MAHAL, PENSION BHAVAN ROAD, NEAR MSP WORKSHOP, MALAPPURAM. ADV. SRI.K.P.MUJEEB FOR R2 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 1644 OF 2006 = = = = = = = = = = = = = = = Dated this the 10th day of November, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Manjeri in Crl.A.400/03. That appeal was preferred against the conviction and sentence passed in S.T.407/02 by the Judicial First Class Magistrate, Malappuram. It was an action u/s 138 of the N.I. Act. The trial court convicted the accused u/s 138 and sentenced him to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.40,000/- and in default to undergo a further imprisonment for one month. It is against that the appeal was preferred which ended in dismissal. It is against that decision the present revision is preferred by the accused. 2. Heard the learned counsel for the revision petitioner. The learned counsel for the revision petitioner would submit that the Courts below had not approached the matter in the correct perspective and therefore it requires Cr.R.P. 1644 OF 2006 -:2:- interference under the revisional jurisdiction of this Court. It has to be stated that a Court of revision has got only limited powers and unless it is able to find that there is illegality, irregularity or perversity or total mis-appreciation of evidence, it may not be possible to disturb the finding on facts. 3. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.40,000/- on 10.9.01 and towards discharge of the same had issued a cheque in November, 2001 which when presented for encashment returned with endorsement insufficiency of funds. The notice which was issued returned as unclaimed and thereafter action was initiated u/s 138. 4. The defence appears to be that the brother of the complainant and his father-in-law had entrusted a sum of Rs.40,000/- with the accused for arranging a visa and thereafter as it was not given they threatened him and had forcibly taken away the cheque leaf from the table. The defence appears to be that he had not even signed the Cr.R.P. 1644 OF 2006 -:3:- cheque. But when PW1 was in the box he had stated that those persons had obtained the signature forcibly in the cheque. So there is not even consistency with regard to the defence. Similarly an attempt was made to point out that there is alteration which invalidates the instrument itself. 5. At the out set when there is a total denial of execution of a document the question of material alteration may not loom large but even in such a contingency the trial court found that there is an over writing with respect to the figures and in the words there is no over writing and the Bank returned the cheque only on account of insufficiency of funds. The Courts below found that the execution of the document is proved and therefore the presumptions u/s 118 and 139 of the N.I. Act is made available. This Court had held that in a 138 case when a defence is set up and evidence is adduced the Court is competent to look into that aspect also in appreciating the evidence so as to understand or arrive at the intrinsic reliability of that evidence. Cr.R.P. 1644 OF 2006 -:4:- 6. As pointed out by the Courts below there is absolutely no consistent case for the accused. Secondly the evidence adduced on behalf of the complainant coupled with the statutory presumptions are very much in favour of the complainant and there is no acceptable, rebuttable evidence to dislodge the presumption under law. From these discussions I hold that there is nothing to interfere with the order of conviction passed u/s 138. 7. So far as the sentence is concerned the trial court has convicted him to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.40,000/- u/s 357(3)Cr.P.C. There can be modification and justice can be met by directing the accused to undergo simple imprisonment for a day, i.e., till the raising of the Court and covert the compensation to one that of fine with a direction to pay the amount to the complainant. In the result the Criminal Revision is disposed of as follows: Cr.R.P. 1644 OF 2006 -:5:- (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The sentence is modified and the revision petitioner is directed to undergo simple imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.40,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of six weeks. (4) The revision petitioner shall appear before the trial court to receive the sentence and also for payment of fine on 15.1.2009 failing which the trial court is directed to execute the sentence. (5) If any amount has been deposited by way of compensation in this case it can be treated as fine and let it be disbursed to the complainant on proper application. M.N. KRISHNAN, JUDGE. ul/-