IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH DAY OF DECEMBER 2011/16TH AGRAHAYANA 1933 CRRP.No. 1784 of 2011 ( ) ========================= CRA.NO.677/2009 of ADDL.DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-I), KOZHIKODE STC.NO.1008/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT- II, PERAMBRA REVISION PETITIONER(S)/APPELLANT/ACCUSED ======================================== 1. RASHEED P.M., AGED 33 YEARS, S/O.KHADAR, KANDOTH HOUSE,PUNNATHARA MALAYIL, KARAMMAL M.M.PARAMBA POST, UNNIKULAM,KOZHIKODE DISTRICT. BY ADV.SRI.P.SHRIHARI SMT.P.VANI RESPONDENT/COMPLAINANT & STATE ================================== 1. SREE GOKULAM CHIT AND FINANCE CO.(P)LTD. GOKULAM TOWERS,NO.66 ARCOT ROAD, CHENNAI, REPRESENTED BY ITS LEGAL CLERK, MR.SUDHEESH KUMAR,SREE GOKULAM CHIT AND FINANCE CO.(P) LTD.CENTURY COMPLEX, OPP. CHIRAKKAL KAVU TEMPLE, BALUSSERY-673 612. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 PUBLIC PROSECUTOR SMT.SEENA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.1784 of 2011 ----------------------------------------------- Dated this the 7th day of December, 2011 O R D E R Challenge in the revision is against the conviction of the accused, who has been prosecuted for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short ‘the Act’}. Sentence imposed against the accused as affirmed by the Sessions Judge in appeal is simple imprisonment for six months with direction to pay compensation of Rs.1,90,798/-, the cheque amount to the complainant with default term of simple imprisonment for six months more. Feeling aggrieved the accused has preferred this revision. 2. Notice was ordered to the 1st respondent/complainant, but after service, the complainant has elected to remain absent. Crl.R.P.No.1784 of 2011 :: 2 :: 3. I heard the learned counsel for the petitioner/accused. Learned counsel reiterated the challenges canvassed before the court below to assail the conviction concurrently rendered against the accused contending that both the courts below failed to appreciate the materials tendered in the case properly and correctly. The defence canvassed by the accused denying the execution of the cheque and also setting forth a specific case that he had joined only in one chitty operated by the complainant company was not examined by the court with reference to the materials produced, is the submission of the counsel. Though the ledger extracts relating to the two chitties as alleged and claimed by the chitty company, the complainant, was sought for by the accused, Crl.R.P.No.1784 of 2011 :: 3 :: what was produced before the court and exhibited as Exts.D1 and D2 through an employee of the chitty company, DW.1 were only some computer statements; but, overlooking the non-production of the records called for, the courts below, both of them, placed reliance on such computer statements to negative the defence version raised by the accused, submits the counsel. The materials tendered in response to the summons issued had no connection with the documents sought for, and no reliance was permissible on the documents produced and marked as Exts.D1 and D2; and, an adverse inference should have been drawn against the complainant to hold that the prosecution of the accused on its complaint for the offence under Section 138 of the Act cannot Crl.R.P.No.1784 of 2011 :: 4 :: be sustained, is the further submission of the counsel. Conviction entered against the accused, in the aforesaid circumstances, is liable to be set aside by allowing the revision, according to the counsel. 4. I have perused the records with reference to the submissions made by the counsel. Complainant has specifically alleged that the cheque involved, Ext.P2, was issued by the accused towards the debt or liability arising out of the two chitties prized by him each of them having a prize amount of Rs.2 lakhs. He had defaulted future subscriptions after prizing those chitties and on demand to clear off the liabilities Ext.P2 cheque was issued, which on presentation for encashment was dishonoured due to insufficiency of funds Crl.R.P.No.1784 of 2011 :: 5 :: in the account of the accused, was the case of the complainant. That case was resisted by the accused contending that he had joined only in one chitty for a value of Rs.2 lakhs and when it was prized, a blank signed cheque had been obtained from him and that instrument had been misused after filling up the entries to prosecute him after its presentation and dishonour. The notice issued to the accused on dishonour of the instrument was returned unclaimed. He had taken a defence that there was no proper service of notice as it had been sent to his former address. But the envelope containing the notice showed that it was re- directed to his present address and then it was refused to be accepted. So much so, the defence canvassed as to non-service of notice to Crl.R.P.No.1784 of 2011 :: 6 :: wriggle out of the prosecution for the offence under Section 138 of the Act was shown to be devoid of any merit. The endorsement in the envelope indicated that it was returned 'unclaimed', which was as good as ‘effective service’ on the accused. The further defence taken by the accused that he had joined only in one chitty and the cheque was issued in blank form with signature alone was found to be unworthy of any merit by both the courts below. The accused, who contended that the cheque in blank form with signature alone was issued, did not show that the other entries were written by a different hand. He asked for the ledger extracts in relation to the chitties, but what was produced was only computer statements relating to those chitties, the challenge now Crl.R.P.No.1784 of 2011 :: 7 :: canvassed for to assail the conviction concurrently rendered against him cannot be given unmerited consideration where it is seen that he has not even mounted the box to swear in support of his defence. Production of the ledger extracts as ordered under the summons issued was not complied with is no ground to discard the evidentiary value of the computer statements, which is seen duly certified as proper and correct as mandated under Sections 64 and 65 of the Evidence Act. A presumptive value of correctness follows in view of the endorsements made, and if at all the accused had any further challenge it should have been raised before the magistrate setting forth and convincing the need, if any, for production of the ledgers. The documents produced by the Crl.R.P.No.1784 of 2011 :: 8 :: complainant, exhibited as Exts.D1 and D2, corroborate the version of PW.1 that the accused had joined two chitties and not one chitty as contended by him. The defence canvassed by the accused raising a plea that he joined only one chitty which remained unsupported by any material whatsoever, would not get any assistance by attacking the evidentiary value of Exts.D1 and D2 produced by the complainant. Both the courts below have rightly and correctly repelled the contentions raised by the accused, and the conviction entered against him, based on the materials produced, is unassailable. 5. So far as the sentence imposed against the accused, having regard to the nature of the offence, I find, the substantive Crl.R.P.No.1784 of 2011 :: 9 :: term of imprisonment directing his incarceration for a period of six months warrants interference. No exceptional circumstance has been made out in the case to provide such harsh punishment against the accused. Sentence of imprisonment has to be reduced to imprisonment till the rising of the court, retaining the compensation with the default term of imprisonment, reduced to three months, as that will be sufficient to meet the ends of justice for the offence involved in the case. 6. Affirming the conviction, the sentence imposed against the accused is modified and reduced to imprisonment till the rising of the court, retaining the compensation fixed, and reducing the default term of Crl.R.P.No.1784 of 2011 :: 10 :: imprisonment to simple imprisonment for three months. Petitioner/accused shall appear before the magistrate on 15.02.2012, to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate is directed to keep in abeyance the execution of the sentence till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and non-payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.