IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Crl.Rev.Pet.No. 2587 of 2011() ----------------------------------------- CRA.195/2010 of ADDL.DISTRICT & SESSIONS COURT(ADHOC)III, PATHANAMTHITTA CC.529/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- K.T.BABY, INDIKKATTIL HOUSE, VAKAYAR P.O., KONNY, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ----------------------------------------------------------------------------------- 1. M.G.MATHEW, MADAPPALLIL VEEDU, NANNUVAKKADU, PATHANAMTHITTA 689 645. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. R2 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2587 OF 2011 ----------------------------------------- Dated this the 3rd day of November 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently, by the two courts below. Sentence imposed against the accused, as modified by the learned Sessions Judge in appeal, is imprisonment for six months and to pay fine of `.3,00,000/- with default term of simple imprisonment for three months. Fine amount, if realised, was directed to be paid as compensation to the complainant. Feeling aggrieved, the accused has filed this revision. 2. The learned counsel for the petitioner/accused assailed the conviction contending that the defence canvassed by him disputing the transaction alleged by the complainant and also denying the execution of the cheque, was not properly appreciated by both the courts below. The accused has contended that in relation to a transaction with the younger brother of the complainant, he had handed over a blank cheque with signature alone as security for availing a loan of `.10,000/- from him. He had no transaction, whatsoever, with the complainant, was his defence. When such a Crl. R.P No.2587 OF 2011 2 defence was raised by the accused, proof as regards the execution and also transaction relating to the cheque directly with the accused was warranted, but, none was tendered in the case other than the evidence of the complainant, submits the counsel. Evidence of the complainant, according to the counsel was hardly sufficient to prove the execution of the cheque. So much so, conviction entered against the accused is unsustainable, submits the counsel. 3. Going through the judgments rendered by the learned magistrate and also the learned sessions Judge, I find no merit in the challenges raised by the counsel. On dishonour of the cheque, statutory notice was issued to the accused by the complainant. That notice was duly acknowledged, but, that was not responded even by a reply. The defence canvassed by the accused, belatedly, at the stage of trial, necessarily has to be examined with reference to the aforesaid circumstance as to acknowledgment of the statutory notice and nonsending of reply thereto. Further more, it is conceded by the accused that the cheque, on the dishonour of which, prosecution was launched against him, arose from his account. He has advanced a defence that it was issued in blank form with signature alone. Though he had disputed the other entries in the cheque as regards the date column, payee column etc. no attempt Crl. R.P No.2587 OF 2011 3 was made by the accused to show that the entries thereof were filled up by a different hand. He also did not mount the box to swear in support of the defence canvassed denying the execution of the cheque and also having any transaction with the complainant. On the contrary, the evidence let in by the complainant, supported by the documentary evidence tendered in the case, was found reliable, convincing and trustworthy to the learned magistrate. Needless to point out, the learned magistrate had the opportunity to watch the demeanour and deportment of the complainant when he was examined. Conclusion formed by the learned magistrate found approval by the learned sessions Judge after reappraisal of the evidence. Concurrent finding on fact so entered by the two inferior courts is not liable to be disturbed in exercise of revisional jurisdiction unless it is shown that finding is perverse. No such circumstance is brought to my notice to hold that the finding so made suffers from any infirmity whatsoever. So much so, the finding on guilt entered against the accused, is only to be affirmed. 4. As regards the sentence imposed, six months imprisonment apart from the direction to pay compensation, I find, both the courts below have erred in awarding the punishment. The liability arising under a dishonoured cheque, but, for the inclusion of Crl. R.P No.2587 OF 2011 4 it as an offence, subject to the satisfaction of the ingredients necessary for launching the prosecution under Section 138 of the NI Act, is purely civil in nature. Though it would be open for the drawer of the cheque, on dishonour of the instrument, to set up a defence that such dishonour had occasioned for reasons beyond his contemplation at the making of the instrument, still, the court when awarding the sentence has to take note that normally dealings in cheques in commercial transactions are done not with the mens rea that on presentation it would be dishonoured. No exceptional circumstance has been presented in the case to provide a rigorous term of imprisonment as part of the imprisonment against the accused. So much so, sentence of imprisonment for a term awarded to the petitioner has to be modified and reduced to imprisonment till the rising of the court retaining the compensation awarded with the default term of imprisonment. 5. Affirming the conviction, sentence imposed against the accused is reduced and modified to imprisonment till the rising of the court with direction to pay compensation of `.3,00,000/- to the complainant with default term of simple imprisonment for three months. Petitioner is directed to appear before the magistrate on 19-12-2011 to serve out the imprisonment till the rising of the court, Crl. R.P No.2587 OF 2011 5 and to report payment of compensation. The magistrate is directed to keep in abeyance the execution of 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 nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge