IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 Crl.Rev.Pet.No. 113 of 2008() ----------------------------- CRA.34/2007 of SESSIONS COURT, KASARAGOD STC.876/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- KOTTUWALA NARAYANAN, AGED 53 YEARS, S/O.AMBADI, RESIDING AT PALAYI, PUTHARIYADUKKAM P.O., NILESWAR. BY ADV. SMT.T.SUDHAMANI RESPONDENTS: RESPONDENT/COMPLAINANT AND STATE --------------------------------------------- 1. K.BALAKRISHNAN, S/O.AYYAPPAN, RESIDING AT KARIVELIKKAL, NEAR NILESWAR RAILWAY STATION, NILESWAR P.O., NILESWAR. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 113 OF 2008 ------------------------------------------------- Dated this the 18th day of January, 2008 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the N.I. Act. The petitioner now faces a sentence of imprisonment till rising of court. He is further directed to pay the actual cheque amount of Rs.40,000/- as compensation and in default, to undergo simple imprisonment for a period of one month. 2. Signature in the cheque is disputed. That the cheque is drawn on a cheque leaf issued to the petitioner by his bank to operate his account is not disputed. That the cheque was presented and was dishonoured, inter alia, on the ground of insufficiency of funds is not disputed. That the notice of demand, though duly received and acknowledged, did not Crl.R.P. No. 113 OF 2008 -: 2 :- evoke any response is also not disputed. In the course of trial, a contention was sought to be pressed into service that the signature appearing in the cheque is not that of the petitioner. A suggestion was thrown at P.W.1 that the two were carrying on business together and while so carrying on business, one cheque leaf has been stealthily removed by the complainant from the possession of the accused. This is the defence urged. 3. The complainant examined himself as P.W.1 and the Manager of the Bank as P.W.2. Exts.P1 to P6 were marked. The accused did not adduce any evidence - oral or documentary. The courts below, in these circumstances, came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Sec.138 of the N.I. Act. Accordingly, they proceeded to pass the impugned concurrent judgments. 4. The petitioner claims to be aggrieved by the impugned concurrent judgments. What is the grievance? 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 Crl.R.P. No. 113 OF 2008 -: 3 :- cheque is not proved to be signed by the petitioner. Signing and execution have not been proved. This is the only contention raised before this Court. 5. Primarily, we have the oral evidence of P.W.1 about the circumstances under which the cheque drawn on a cheque leaf issued to the petitioner by his bank to operate his account travelled from his possession and came to the possession of the complainant. The complainant's evidence shows that the cheque was signed and handed over by the petitioner to the complainant. His evidence is eminently supported by his ability to produce the cheque in question. His evidence is further rendered probable and acceptable by the artificial, unnatural and improbable conduct of the petitioner not responding to the notice of demand when it was received by him. Significantly, no semblance of an explanation is offered to explain such a crucial circumstance. That circumstances is, according to me, eloquent. If really the cheque were stealthily taken away and misutilised to stake a claim as revealed in the notice of demand, it would be idle to expect any person with his head on his shoulders not to respond to such a notice of demand. That Crl.R.P. No. 113 OF 2008 -: 4 :- circumstance is sufficient to tilt the balance clinchingly in favour of the complainant's version. 6. The learned counsel for the petitioner relies heavily on the statement of P.W.2 and the statement in Ext.P2 dishonour memo that there is a difference in the signature in the cheque. Variation of signature is perceived by P.W.2 and that is expressed in Ext.P2 dishonour memo, contends the learned counsel for the petitioner. The courts below have considered this aspect. They took note of the fact that some variation in the signature of a person with elapse of a long period of time is only normal and there is nothing abnormal or artificial if there be changes/variations in the signature of the person concerned. The evidence of P.W.2 clearly shows that the opinion that there is variation of signature is found by looking into the specimen signature card prepared long back. That circumstance and its probative value must be considered in the light of the totality of other circumstances which are available in this case. 7. I am at the third tier of criminal litigation and I am called upon to invoke and exercise the revisional jurisdiction of superintendence and correction. Such jurisdiction cannot be Crl.R.P. No. 113 OF 2008 -: 5 :- lightly invoked to interfere with the concurrent findings of fact. Unless the findings of fact are so grossly erroneous or perverse and such vice in turn leads to miscarriage of justice, this Court must be reluctant to invoke the revisional jurisdiction in trial. Due allowance must be given to the perceptions of an alert trial Judge who has the opportunity to see the witnesses perform in the witness stand before him. The discretion exercised in the matter of choosing and preferring one set of evidence over another should not, according to me, be interfered with in revision unless compelling reasons are there. I do not find any such reason in this case. I am not hence persuaded to agree that the revisional powers of superintendence and correction need to be invoked to interfere with the concurrent finding recorded by the courts below which does appear to me to be absolutely reasonable and cogent. 8. The petitioner has the burden to rebut the presumption under Sec.139 of the Negotiable Instruments Act. The indictee need not disprove the case of the complainant to succeed in his attempt to rebut the presumption. He need not prove his case to the hilt or beyond reasonable doubt to succeed in the Crl.R.P. No. 113 OF 2008 -: 6 :- contention that he has discharged the burden. He need only show by the test of preponderance of possibilities and probabilities as in a civil case that his case can be held to be true. The petitioner has not chosen to adduce any evidence in this case. The attempt made by him in the course of cross- examination of P.Ws.1 and 2, according to me, does not measure up to the expected standard of proof which must be discharged by him in an attempt to establish his defence. 9. The up shot of the above discussions is that the said concurrent findings of the courts below – that the cheque has been issued by the petitioner to the complainant for the due discharge of any legally enforcible debt/liability does not deserve to be interfered with. 10. I now come to the question of sentence. The sentence imposed is most lenient and modest. Though the cheque was issued in 2005, the petitioner is even today directed to pay the actual cheque amount as compensation. There is no deterrent substantive sentence of imprisonment also. The plight of the complainant cannot be overlooked by any court. I do not, in these circumstances, find any merit in the last prayer made by Crl.R.P. No. 113 OF 2008 -: 7 :- the learned counsel for the petitioner that some further time may be granted to the petitioner to raise and pay the amount and avoid the default sentence. However, reasonable time can be granted to the petitioner to so raise and pay the amount and avoid the default sentence. 11. In the result, this revision petition is dismissed; but with the direction/observation that the petitioner shall have time till 29/2/2008 to pay the amount and avoid the default sentence. On or before 1/3/08, the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the sentence. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No. 113 OF 2008 -: 8 :-