IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 2684 of 2007() ------------------------------ CRA.43/2004 of I ADDL. SESSIONS COURT, KOLLAM CC.81/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------- SASEENDRAN NAIR, S/O.SURENDRAN PILLAI, SUSEENDRATHIL VEEDU, MANALIL, AYURANALLOOR, PATHANAPURAM. BY ADV. SRI.C.RAJENDRAN RESPONDENTS/RESPONDENTS/COMPLAINANT& STATE: ---------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHANMUGHAN, SHAJINI BHAVANAM, MANALIL, AYURANALLOOR VIA, ANCHAL. R1 BY PUBLIC PROSECUTOR, SRI.P. RAVINDRA BABU R2 BY ADV. SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.R.P. No. 2684 OF 2007 ----------------------------------------------- Dated this the 16th day of March, 2009 O R D E R This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The petitioner faced a sentence of simple imprisonment for a period of three months. He is further directed to pay the cheque amount Rs.2 lakhs as compensation under Section 357(3) Cr.P.C. No default sentence is seen imposed. 2. Complainant alleged that accused had borrowed an amount of Rs.2 lakhs from him on 30.03.99. According to him, earlier there were many transactions between the accused and the complainant and the complainant used to promptly repay the amounts. When the alleged amount was borrowed on 30.03.99 it was agreed that, repayment shall be effected on 30.04.99. But on that day, repayment was not effected. Complainant insisted on return of the amount and it was then that a post dated cheque (Ext.P1) dated 18.10.99 was issued on 30.04.99 for the discharge of the said legally enforceable debt/liability. That cheque was CRRP:2684/07 -:2:- presented on 26.10.99. The same was dishonoured by the Bank on the sole ground of insufficiency of funds. When the dishonour memo was received by the complainant, he caused notice of demand to be issued to the accused. That did not evoke any response. Later the complainant after observing the statutory time table strictly, initiated prosecution under Section 138 of the Negotiable Instruments Act. Long after the initiation of prosecution, a reply notice was received by the complainant. Neither the accused nor the complainant has produced that reply notice. 3. As stated earlier, the complainant came to the court with the complaint observing the statutory time table. Cognizance was taken. The accused denied the offence alleged against him. Thereupon the complainant examined himself as PW1 and proved Exts.P1 to P7. 4. In the course of cross examination of the accused and later when the accused was examined under Section 313 Cr.P.C, it appears that the accused wanted to raise a contention that the cheque was stealthily taken from the scooter of the accused by CRRP:2684/07 -:3:- the complainant and his brother on a date when there was an alleged attack against the accused by the complainant. Surprisingly, throughout the case the date of that incident is not mentioned at all. Of course, there is a statement that there was an incident on 26.05.99, but, that is long after the date of the alleged issuance of the cheque on 30.04.99. 5. The accused, it appears, wanted to rely on a stop payment memo dated 18.03.99 submitted by him to the bank to stop payment. There are indications to suggest that reference was made in the reply notice about the stealthy removal of the cheque of the accused. 6. The bank manager was examined as DW1. He proved Exts.D1 to D6. Records show that Ext.D4 dated 18.03.99 is the stop payment memo issued by the accused to his bank. The relevant register shows that the such a stop payment memo dated 18.03.99 was received by the bank. But, surprisingly, the date of receipt of Ext.D4 by the bank is not indicated in any one of the documents. 7. The courts below came to the conclusion that the CRRP:2684/07 -:4:- complainant has succeeded in establishing all ingredients of the offences punishable under Section 138 of the Negotiable Instruments Act. Accordingly, the court below proceeded to pass the impugned concurrent judgment. 8. Called upon to explain the nature of the challenge which the petitioner/accused wants to mount against the impugned concurrent verdict of guilty, conviction and sentence, the learned counsel for the petitioner/accused advances various contentions. 9. First of all it is contended that, the cheque was not issued for the due discharge of a legally enforceable debt/liability. Signature in the cheque is not seen disputed. The cheque is produced by the complainant. I, now look for the explanation of the accused as to how the cheque signed by him travelled from his possession to the possession of the complainant. Though a vague contention is raised that the accused was attacked by the complainant and his brother and the cheque was stealthily removed from the scooter of the accused, there is significantly no whisper of an explanation as to the date on which the cheque came into the hands of the complainant. What did the accused do CRRP:2684/07 -:5:- when he found the cheque was stolen/missing ? No complaint has been made before any authorities admittedly and at any rate, there is nothing to show that such a complaint of theft of cheque by the complainant or his brother was ever made before any authorities. Thus, there is absolutely no material to show that the accused had complained to anyone about the alleged removal of the cheque stealthily by the complainant and/or his brother. This, according to me, is crucial and vital. 10. The learned counsel for the petitioner/accused contends that there are indications to show that Ext.D4 stop payment memo dated 18.03.99 was given by the accused to the bank. As already noted, it is impossible to ascertain the date on which Ext.D4 was handed over by the accused to his bank. It will not be in apposite in this context to note that the memo of dishonour does not at all refer to such a stop payment memo. The accused has no case as to the date on which the cheque was stealthily removed by the complainant and/or his brother from his scooter. It is crucial to note that in Ext.D4 there is no allegation that anyone had stealthily removed the cheque, but, the only case is that, it was lost from the CRRP:2684/07 -:6:- possession of the accused. Ext.D4 dated 18.03.99 cannot in these circumstances inspire confidence at all. That is not referred to in the memo of dishonour. There is no explanation as to the date on which the cheque was lost or stealthily removed. Very interestingly, no complaint has ever been made to anyone alleging that the complainant and/or his brother had removed the cheque stealthily from the possession of the accused/petitioner from the scooter of the accused. Moreover, the accused does not even attempt to explain why a signed blank cheque was kept in the scooter and made available to all and sundry for stealthy removal. In short, the conclusion appears to be inevitable that the theory of stealthy removal of the cheque from the possession of the accused cannot be validly explained at all. 11. In the relevant registers, the number of the cheque and the date shown in Ext.D4 are seen noted. This, according to me, is totally insufficient to conclude that Ext.D4 stop payment memo was received by the bank on 18.03.99. This has to be read in the light of the total absence of any material to show that the accused who allegedly knew that the complainant and his brother were CRRP:2684/07 -:7:- responsible for such stealthy removal had not filed any complaint before anyone about such stealthy removal of the cheque. 12. I am, in these circumstances, of the opinion that the mere fact that Ext.D4 stop payment memo was available in the bank and that it was produced by the bank before the Magistrate cannot lead a prudent mind to the conclusion that such stop payment memo was issued to the bank prior to the date of the impugned transaction on 30.03.99 or prior to 30.04.99 the date on which, according to the complainant, the cheque was handed over to him. 13. The court below took note of the circumstances that it is quite possible, even assuming that the cheque was lost from the possession of the accused prior to 18.03.99 and that he may have traced it and may have issued the same on 30.04.99 to the complainant. In that view of the matter also, Ext.D4 cannot clinch the issue. 14. The crux of the contention of the accused is that the cheque was stealthily removed from his possession by the complainant. There is no semblance of material to show that on CRRP:2684/07 -:8:- any date prior to 18.03.99 or prior to 30.04.99 any such incident had taken place at all. In fact, the only suggestion about such incident having taken place prior to 26.05.99 is not available in evidence nor is it available from Ext.D4. 15. I now come to the appreciation of the evidence of PW1. According to the complainant, the amount was paid earlier and the cheque was issued for the due discharge of the liability on a later date. The version of the complainant is eminently corroborated by his ability to produce the cheque which admittedly has the signature of the accused affixed on it. As already stated, the theory of stealthy removal of the cheque falls to the ground on broad probabilities and also on the basis of the materials produced. The evidence of PW1 shows that the cheque was issued for the due discharge of a legally enforceable debt/liability. In the facts and circumstances of the case, I find no reason not to accept and act upon the oral evidence of PW1 on this aspect. In these circumstances I am of the opinion that, the complainant has succeeded in proving the transaction and the issuance of the cheque to the complainant by the accused for the due discharge CRRP:2684/07 -:9:- of such legally enforceable debt/liability. 16. It may not be in apposite in this context to note that even admittedly reply notice was issued long after the notice of demand was received. It was issued 12 days after the complaint was filed. The absence of a prompt reply in this context has relevance. The non-production of the reply is also of crucial relevance in the circumstances of the case though of course the complainant could also have produced the same. 17. I am, in these circumstances, of the opinion that sufficient materials have been placed before court by the complainant in the form of his own oral evidence and the original of the cheque produced by him to confirm that the cheque has been issued for the due discharge of the legally enforceable debt/liability for the due execution and handing over of the cheque is proved satisfactorily by the oral evidence of PW1. Such execution and handing over having been proved, the presumption under Section 139 of the Act stares at the accused. The accused has not succeeded in proving his case. In these circumstances, I am satisfied that the complainant has successfully established the CRRP:2684/07 -:10:- crucial ingredient under Section 138 of the Negotiable Instruments Act that the cheque was issued for the due discharge of the legally enforceable debt/liability. No other contentions are raised on merits and I am in these circumstances satisfied that the impugned verdict of guilty and conviction only deserves to be upheld. I agree with the conclusion of the courts below that the cheque was issued for the due discharge of such legally enforceable debt/liability. 18. The learned counsel for the revision petitioner finally contends that the sentence imposed is excessive. Substantive sentence of simple imprisonment for three months and a direction for payment of the cheque amount as compensation are imposed. No default sentence is imposed. Counsel prays that leniency may be shown on the question of sentence. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the Negotiable Instruments Act in the decision in Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that leniency can be shown to the petitioner but only after ensuring that the complainant who has been compelled to fight CRRP:2684/07 -:11:- three rounds of battle and wait from 1999 is adequately compensated. The challenge in this revision can succeed only to the above extent. 19. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction under Section 138 of the Negotiable Instruments 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 to pay an amount of Rs.2,20,000(Rupees two lakhs and twenty thousand only) as compensation and in default to undergo a simple imprisonment for a period of three months. If deposited, the entire amount shall be released to the complainant. d) The petitioner shall have time till 30.04.09 to make the payment and avoid the default sentence. The modified sentence shall not be executed till that date. The accused shall appear and the sureties shall CRRP:2684/07 -:12:- produce him before the learned Magistrate on 02.05.09 for execution of the modified sentence hereby imposed. e) If the accused does not appear, needless to say, appropriate action under Section 446 Cr.P.C can be initiated against the petitioner and his sureties. R. BASANT, JUDGE ttb CRRP:2684/07 -:13:- CRRP:2684/07 -:14:-