IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 Crl.Rev.Pet.No. 163 of 2008() ----------------------------- CRA.196/2007 of SESSIONS COURT, ERNAKULAM ST.1429/2004 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------ K.M.PANKAJAM, AGED 49 YEARS, W/O.N.K.SASIDHARAN, NADETHETHU HOUSE, AMBALLUR P.O. BY ADV. SRI.K.N.CHANDRABABU RESPONDENTS: ------------- 1. K.V.POULOSE, KACHAPPILLY HOUSE, SREEMOOLANAGARAM P.O., KALADY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.163 of 2008 ---------------------------------------- Dated this the 25th day of January 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The petitioner now faces a sentence of imprisonment till rising of court and there is a further direction to pay an amount of Rs.41,000/- as compensation and in default to undergo S.I for a period of forty five days. 2. The cheque is for an amount of Rs.40,000/-. It bears the date 19/01/2004. The signature in the cheque is admitted. That the cheque was handed over by the petitioner to another is admitted. Notice of demand did not evoke any response. The complainant examined himself as PW1 and the Bank Manager as PW2 and proved Exts.P1 to P7. The accused did not adduce any defence evidence. The short contention which was attempted to be advanced was that the cheque was not handed over by the petitioner to the complainant for the due discharge of any legally enforcible debt/ liability; but was handed over by her to one Antony, with whom she had business relationship, as security Crl.R.P.No.163/08 2 and as a signed blank cheque. That the said Antony, in collusion with the complainant, is misutilising the cheque is the obvious contention made. 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. 4. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability. No other contentions are raised on merits. 5. The case of the complainant on this aspect is well established by the oral evidence of the complainant as PW1. His evidence on that aspect is eminently supported by his ability to produce Ext.P1 cheque drawn on a cheque leaf issued to the petitioner by her bank to operate her account and which admittedly bears her signature. The oral evidence of PW1 on this aspect is further supported satisfactorily by the improbable Crl.R.P.No.163/08 3 and artificial conduct of the petitioner of not responding to the notice of demand which was duly received and acknowledged by her. It will not also be inapposite to note that the petitioner had not adduced any evidence before the courts below. 6. Signature in the cheque is admitted. It is trite that admission of signature is not synonymous with admission of execution. But admission of signature does go a long way in the attempt to prove execution. The evidence of PW1 as also the eloquent silence and inaction of the petitioner on receipt of the notice of demand, do according to me, in the absence of any cogent and acceptable explanation, coming forthwith from the petitioner satisfactorily establishes the execution of the cheque. The courts below were correct in coming to the conclusion that execution of the cheque stands proved. 7. Once execution is proved, a train of presumptions follow under Sections 118 and 139 of the N.I.Act. It is trite by now that the indictee need not disprove the case of the complainant/prosecution. He need not prove his own case to the hilt and beyond reasonable doubt; but he must prove his case by the standards applicable to a litigant in a civil case - by the standard of preponderance of possibilities and probabilities. The Crl.R.P.No.163/08 4 evidence relied on by the petitioner in this case fall significantly short of the said mark. 8. I do, in these circumstances, come to the conclusion that the verdict of guilty and conviction do not warrant any interference. The challenge must and does hence fail. 9. The learned counsel for the petitioner prays that leniency may be shown to the question of sentence. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I.Act in the decision in Anilkumar vs.Shammi [2002(3)KLT 852]. In the facts and circumstances of the case, I find no compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown to the petitioner but subject only to the compulsion of adequately and fairly compensating the victim who has by now been compelled to fight two rounds of legal battle and to wait from 2004 for the redressal of his grievances. The challenge can succeed only to the above extent. 10. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent, I am satisfied. Crl.R.P.No.163/08 5 11. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I.Act are upheld. c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C to pay an amount of Rs.50,000/- (Rupees fifty thousand only) as compensation and in default, to undergo S.I for a period of three months. If realised, the entire amount shall be released to the complainant as compensation. 12. The petitioner shall have time till 29/02/2008 to make the payment. The modified sentence hereby imposed shall not be executed till 01/03/2008. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/03/2008 to serve the modified sentence hereby imposed. If the petitioner does not so appear before the learned Magistrate on or before 01/03/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. Crl.R.P.No.163/08 6 13. Needless to say, credit shall be given to the amount which has been deposited before the courts below. It is submitted that an amount of Rs.14,000/- (Rupees fourteen thousand only) has already been deposited. Such amount shall be released to the complainant forthwith by the learned Magistrate. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.163/08 7 R.BASANT, J Crl.R.P.No.163/08 8 Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008