IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 Crl.Rev.Pet.No. 1189 of 2008() ------------------------------ CRA.371/2006 of I ADDL. SESSIONS COURT, KOLLAM CC.613/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... REVN. PETITIONER(S): APPELLANT BEFORE THE S.C. & ACCUSED IN C.C.613/01. BIJU, S/O. RENGARAJAN, AGED 35, PERUNTHOTTATH HOUSE, THEKKUMKURI KIZHAKKUMMURI, THAZHAVA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.P.V.VARGHESE (KANJIRAMATTOM) SRI.PRAVEEN K. JOY SRI.E.M.MURUGAN RESPONDENT(S): 1ST RESPONDENT IN THE CRA BEFORE THE S.C. 1. VIJAYAN, S/O. KNANU, MADATHINATHU VEEDU, PULIYUR, VANCHITHEKKUMMURI, THODIYUR VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.V.RAJA and Adv. SRI.M.T.SURESHKUMAR FOR R1 PUBLIC PROSECUTOR SRI.P.A. SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No. 1189 of 2008 ................................................ Dated: 25th March, 2010 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in C.C. No. 613 of 2001 on the file of the J.F.C.M. II, Kottarakkara, challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs.3,50,000/-. The fine/compensation ordered by the lower appellate court is Rs. 3,50,000/-. 2. I heard the learned counsel for the Revision Petitioner and the learned counsel for the Ist respondent. 3. The learned counsel appearing for the revision petitioner made the following submissions in support of the Revision:- The specific case of the complainant in the complaint Crl.R..P. No. 1189 of 2008 -:2:- was that on 23.1.1998 at 10 a.m. The accused came to his house and borrowed the amount and on the same day the accused handed over Ext.P1 post-dated cheque. He was examined as P.W.1. The Bank Manager was examined as P.W.2 on the side of the complainant and as DW1 on the side of the defence. DW2 is the handwriting expert who had given Ext.C1 opinion and C1 (a) reasons in support of his opinion. DW3 a friend of the accused who accompanied the accused to speak in support of the reason for not sending a reply to the statutory notice. The specific defence of the accused was that he has not signed the chque leaf in question and his brother one Binu who was a colleague of the complainant in a tutorial college had stealthily removed the cheque leaf from the accused and handed over the same to the complainant and Binu the brother of the accused is thereafter absconding. The above evidence adduced by the defence is sufficient to displace the presumption under the Act. Both the courts below went in wrong in convicting the accused. Crl.R..P. No. 1189 of 2008 -:3:- 4. I am afraid afraid that I cannot agree with the above submissions. Admittedly, the accused is the account holder in respect of the cheque in question and the cheque leaf is one issued by the drawee bank against the said account. The only suggestion made by the accused to P.W.1 the complainant was that Binu the brother of the accused who was a colleague of the accused had handed over the cheque leaf to P.W.1 after getting the same signed. The said suggestion indicates that the brother of the accused had handed over the cheque to P.W.1 after getting the signature of the accused who is account holder. In the light of the suggestion made to P.W.1 it was not even necessary to send the cheque to a handwriting expert for comparison. DW2 the handwriting expert had stated that he is not able to give any conclusive opinion regarding the authorship of the signature and he cannot rule out the possibility of a disguised writing. The fact that there could be an attempt to disguise the handwriting is indicated by the five different vakalaths executed by the accused and Crl.R..P. No. 1189 of 2008 -:4:- shown to DW3. All the signatures in those vakalaths are apparently dissimilar thereby suggesting that the accused had tried to disguise his signature in Ext.P1 cheque. Except the interested testimony of DW3, the friend of the accused to the effect that Binu, the brother of accused is absconding, there was absolutely no material worth its name to indicate that the brother of the accused is absconding. P.W.1 has flatly denied the suggestion that the cheque was handed over to him by the brother of the accused. If as a matter of fact, the brother of the accused had stealthily removed the cheque in question from the custody of the accused he would have atleast countermanded the payment or would have given a stop memo to the Bank. It is significant to note that no such gesture was forthcoming from the accused even after receipt of statutory notice. It is also pertinant to note that P.W.2 = DW1 the Bank Manager has deposed that the bank did not notice any difference in the signature of the accused/account holder and if any dissimilarity in the Crl.R..P. No. 1189 of 2008 -:5:- signature had been noted that would have been made mention of while dishonouring the cheque. Ext.P1 cheque was dishonoured for the sole reason that amounts standing to the credit of the accused were insufficient to honour the cheque. It is pertinent to note that the accused who had denied his signature in Ext.P1 cheque and who wants the court to believe that the cheque was handed over by his own brother to P.W.1 and his brother is thereafter absconding did not mount to the witness box to speak in terms of the above version. Both the courts did not accept the defence put forward by the accused. This Court sitting in the rarefied jurisdiction will be loathe to interfere with the said fact recorded by the final court of facts. 5. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. This Court sitting in the rarefied revisional jurisdiction will be loath to interfere with the findings of fact Crl.R..P. No. 1189 of 2008 -:6:- recorded by the Courts below concurrently. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 6. What now survives for consideration is the legality of the sentence imposed on the revision petitioner. In the light of the decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. I am, therefore, inclined to modify the sentence to one of fine only. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs. 3,55,000/- (Rupees three lakh fifty five thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within Crl.R..P. No. 1189 of 2008 -:7:- eight months from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period he shall suffer simple imprisonment for three months by way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. V. RAMKUMAR, JUDGE. ani/-