IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.Rev.Pet.No. 922 of 2011() ----------------------------- CRA.149/2010 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA ST.913/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT- II,PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- M.K.DIVAKARAN, MELEPARAMBIL VEEDU, THAZHEVETTIPURAM, PATHANAMTHITTA VILLAGE. BY ADV. SRI.C.S.MANILAL SRI.K.VIDYASAGAR SRI.S.NIDHEESH RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. P.N.GOPALAKRISHNAN NAIR, NALONNUMURIYIL, THENGUMKAVU, MALLASSERY P.O., PRAMADOM VILLAGE, PIN 689646. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682031. PUBLIC PROSECUTOR SMT.REKHA.C. NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.922 OF 2011 ------------------------------------------------- Dated this the 30th day of March, 2011. ORDER The challenge in this Crl.R.P. is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that the revision petitioner/accused borrowed a sum of Rs.3,00,000/- from the complainant and towards the discharge of the said liability, the accused/revision petitioner issued Ext.P1 cheque dated 28.2.2008 for an amount of Rs.3,00,000/-. When the said cheque presented for encashment the same was dis-hounoured as there is no sufficient funds in the account maintained by the accused. According to the complainant in spite of the notice sent to the revision petitioner informing him regarding the dishonour of the cheque and demanding the repayment of the cheque amount, no money was paid and therefore, the petitioner has committed the offence punishable under Section 138 of the Negotiable Crl.R.P.NO.922 OF 2011 2 Instruments Act. With the above allegation the petitioner approached the Judicial First Class Magistrate Court-II, Pathanamthitta wherein cognizance was taken for the offence under Section 138 of the NI Act and ST No.913 of 2008 was instituted. During the trial, the complainant himself was examined as PW1 and Ext.P1 to P6 were marked from the side of the prosecution. Absolutely, no evidence either documentary or oral produced from the side of the defence. The trial court after consideration of the entire facts and circumstances involved in this case and the evidence and materials on record, came to the conclusion that Ext.P1 cheque was issued towards the discharge of the liability that due to the complainant and thereby the accused has committed the offence under Section 138 of the NI Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment till the rising of the court and also directed to pay a compensation of Rs.3,00,000/- to the complainant under Section 357(3) of Cr.P.C. The default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed by the revision petitioner, by judgment dated 23.2.2011 in Criminal Appeal No.149 of 2010 the court of Addl. District and Sessions Judge (Adhoc) Fast Track Crl.R.P.NO.922 OF 2011 3 Court-III, Pathanamthitta dismissed the appeal confirming the conviction and sentence imposed by the trial court. It is the above conviction and sentence and the findings of the courts below challenged in this revision petition. 4. I have heard the counsel for the revision petitioner and I have perused the judgments of the trial court as well as the appellate court. 5. The learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the execution and issuance of the cheque and also the transaction beyond reasonable doubt. According to the learned counsel the trial court as well as the appellate court miserably failed to consider the above crucial questions, in a case like the present one. In order to substantiate the above contentions the learned counsel invited my attention to the cross examination of PW1, the complainant, wherein he had stated that the endorsement contained in the cheque and the signature therein are of two different ink and also the complainant has admitted that the endorsement in the cheque is made by an employee of the ESSEN Bankers and therefore, the cheque was executed not by the revision petitioner but somebody else. It is Crl.R.P.NO.922 OF 2011 4 also the submission of the learned counsel that even according to the complainant he had deposited a sum of Rs.3,00,000/- in the ESSEN Bankers and the Bank was in the verge of loss and in such a situation the complainant was not expected to give loan, especially such a huge amount to the revision petitioner. Thus, according the learned counsel the transaction is also not proved beyond reasonable doubt. 6. I am unable to sustain the above contention, especially, in the light of the facts and circumstances involved in this case. Admittedly, the complainant is a retired Head Master and he had deposited Rs.3,00,000/- in the ESSEN Bankers as fixed deposit and the wife of the revision petitioner is one of the directors of the said ESSEN Bankers. As per the facts and circumstances involved in the case it can be seen that when the cheque was presented for encashment the same was dis- honoured consequently, the petitioner had sent Ext.P4 legal notice to the accused and though he had received the notice no reply was given and no amount is paid back. PW1 in lieu of Chief examination filed a detailed affidavit wherein it is categorically stated that he had given a sum of Rs.3,00,000/- to the revision petitioner and when demanded back the money, the accused Crl.R.P.NO.922 OF 2011 5 issued Ext.P1 cheque for a sum of Rs.3,00,000/-. 7. It is true, in the cross examination he had deposed that the endorsement contained in the cheque is made by an employee of the Bank of which the wife of the revision petitioner is one of the directors. In the Chief affidavit the complainant has stated that the transaction in details and he had categorically deposed before the court below that the accused issued the cheque by putting his signature therein, that the said cheque was issued towards the discharge of the liablity that due to the complainant. Even though, the endorsement contained in the cheque in question is made by a third person that does not mean that the cheque was not executed by the account holder, if it is shown that he had voluntarily put his signature understanding the contents therein and issued the cheque to the holder of the cheque. In this juncture it is relevant to note that there is no serious challenge against the signature that contained in the cheque. In the present case PW1 has stated that the endorsement contained therein is that of the employee of the ESSEN Bank of which the wife of the revision petitioner is one of the directors. Therefore, according to me, there is nothing unusual, since the endorsement and the signature are of Crl.R.P.NO.922 OF 2011 6 different person. 8. In the given facts and circumstances of the case as indicated above, it can be seen that the endorsement in Ext.P1 cheque is not a stranger and the complainant as well as the revision petitioners are having previous acquaintance. In the said circumstances, according to me, it cannot be said that the cheque was not executed and issued by the revision petitioner especially when there is no denial of the signature. It is also relevant to note that the handwriting of the endorsement contained in Ext.P1 cheque according to the complainant is that of the employee of ESSEN Bankers of which the wife of the revision petitioner is one of the directors. If the accused deny the said fact he can very well summon and examine such employer as one of the defence witness and he can establish that he never executed or made any endorsement in the cheque and in that case, the case of the complainant is likely fall under shadow of doubt. But in the present case no such step was taken. No questions was put to PW1 with respect to the time gap between the endorsement and the signature, regarding the place of the execution, the date of the execution and regarding the presence of any other at the time of the execution etc. If the Crl.R.P.NO.922 OF 2011 7 holder of the cheque is proved that the endorsement contain therein is made by one person and signature is put by the actual account holder, there is no consequence, even if the ink of endorsement and the signature are different. On a conjoined reading of the statement contained in chief affidavit and in the cross examination it can be seen that the complainant has established the execution and issuance of Ext.P1 cheque. 9. The learned counsel for the petitioner submitted that during cross examination of PW1 has stated that the endorsement contained in P1 cheque is that of an employee of ESSEN Bankers and not that of the petitioner and thus according to him the complainant has admitted that the cheque was not executed by the revision petitioner. The above contention according to me it is not amendable to the common sense of a prudent man. In order to treat such a statement of PW1 in cross examination as an admission, the revision petitioner must have a case and the cross examination to the effect that Ext.P1 cheque was executed, by making endorsement by the employee of ESSEN Bankers. As the revision petitioner has no specific challenge against the signature that contained in the cheque it cannot be said that the complainant has admitted the case of Crl.R.P.NO.922 OF 2011 8 defence that accused died not execute the cheque. In the present case the revision petitioner has no case that his specific defence or case was that the endorsement in Ext.P1 cheque was made by the employee of ESSEN Bankers. On the other hand, facts was stated in PW1 in his cross-examination in supplemental to his case that the accused has executed and issued the cheque. The alleged endorsement, made by the employee of the ESSEN Bankers of which the wife of the petitioner is one of the directors, is the mode of execution by the revision petitioner. As long as there is no serious dispute against the signature of that contained in Ext.P1, it can be safely presumed that the revision petitioner approved the endorsement. According to me, to execute a cheque the endorsement therein need not be made by the account holder himself and in this case the same was made by the employee of his wife and the same is quite natural and there is nothing unusual or strange in the absence of any challenge against the signature contained therein. Therefore, the explanation offered by PW1 during the cross-examination regarding the mode of execution, especially when the revision petitioner has no serious challenge against the signature rather admitting the same, it cannot be said that such explanation will Crl.R.P.NO.922 OF 2011 9 come under the definition “Admission” contained in Section 17 of the Evidence Act or as stated in Section 18 of the Evidence Act. 10. In this juncture, it is also relevant to note that even though the accused/revision petitioner has got a right to keep silence without answering to the legal notice, such silence will become relevant and goes against the accused especially the case like the present one. If there was a proper reply denying the execution of the cheque, certainly the complainant could have adduce evidence other than the evidence adduced in this case, but in the present case no such reply was given and the above story is put forwarded for the first time, during the trial. 11. Another point raised by the learned counsel is to the effect that it is not acceptable to common sense that when the Bank was in the verge of loss, the complainant had gave a sum of Rs.3,00,000/- to the revision petitioner. There are ample evidence to show that the complainant as well as the revision petitioner got previous acquaintance and the complainant is a retired Head Master. The wife of the revision petitioner is one of the directors of the ESSEN Bank. It is for the petitioner at the time of cross-examination of PW1 to question as to why these amount was given as loan to the revision petitioner when the Crl.R.P.NO.922 OF 2011 10 bank was on the verge of loss. But no such question was put him. But the facts and circumstances involved in this case would justify the version of PW1 that though the Bank was in loss, he paid Rs.3,00,000/- to the revision petitioner because of their friendship and acquaintance. According to me, the above facts and circumstances would show that the contention of the learned counsel on this point also fails. 12. As this court is not inclined to interfere with the order of conviction and sentence, the learned counsel for the revision petitioner submitted that the petitioner may be granted sufficient time to compensate the complainant. The above submission requires positive consideration. In the present case, the trial court as well as the appellate court imposed only the sentence of one day simple imprisonment i.e, till the rising of the court and no sentence of fine is imposed. The cheque in question is dated 28.2.2008 that too for an amount of Rs.3,00,000/-. According to me, while granting some time to the revision petitioner to pay the amount, the interest of complainant is also to be protected. In the result, while confirming the conviction and sentence of the revision petitioner for the offences u/s. 138 of NI Act, the Crl.R.P.NO.922 OF 2011 11 petitioner is directed to pay a sum of Rs.3,30,000/- to the complainant as compensation under Section 357(3) of Cr.P.C within three months from today and in default he is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.06.2011 to receive the sentence of imprisonment and to pay the modified compensation amount. If there is any failure on the part of the revision petitioner in appearing before the courts below and paying the compensation amount, the trial court is free to take steps to execute the sentence and for realisation of compensation amount. Coercive steps if any pending against the revision petitioner shall be deferred till 30th June, 2011. Subject to the above modification with respect to the compensation amount and the time for payment the revision petition is dismissed. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm