IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 Crl.Rev.Pet.No. 979 of 2011() ----------------------------- CRA.282/2010 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM .................... REVN. PETITIONER(S): REVISION PETITIONER ---------------------------------------- K.K. ABOOTTY, FURNACE, NEAR WOMEN'S COLLEGE, CHETHANKUNNU,THALASSERY - 670 101. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): RESPONDENTS -------------------------- 1. K.P. SATHEESAN, KARRIYAMPARAMBIL HOUSE, CHITTOOR ROAD, KOCHI - 18. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.979 OF 2011 ------------------------------------------------- Dated this the 7th day of April, 2011. ORDER The challenge in this Crl.R.P. is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that the accused/revision petitioner borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 10.6.2008 for an amount of Rs.1,00,000/- which when presented for encashment dishonoured as there was no sufficient funds in the account maintained by the accused. According to the complainant when he received the dishonour memo he issued legal notice informing the revision petitioner regarding the dishonour of cheque and demanding the amount covered by the said cheque, but no payment was made. With the above allegation the complainant approached the Judicial Magistrate of First Crl.R.P.NO.979 OF 2011 2 Calss-V, Ernakulam by filing a formal complaint upon which cognizance was taken for the offence punishable under Section 138 of the Negotiable Instruments Act and instituted ST.No.2236/2008. During the trial from the side of the prosecution the complainant himself was examined as PW1 and produced Exts.P1 to P5 documents. Though no witness was from the side of the defence, Exts.D1 to D7 were produced from the part of the accused. After the evidence and materials on record the trial court came into the conclusion that Ext.P1 cheque was issued towards the discharge of liability that due to the complainant and thereby the revision petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act. On such conviction the trial court sentenced him to undergo simple imprisonment for a period of 6 months and also directed him to pay compensation of Rs. 1,00,000/- to the complainant under Section 357(3) of Cr.P.C. The default sentence is fixed as two months simple imprisonment. 3. Challenging the above conviction and sentence the Crl.R.P.NO.979 OF 2011 3 judgment of trial court, though the petitioner had preferred an appeal, but by the judgment dated 31.12.2010 in Crl. Appeal No.282/2010 the court of Addl. Sessions Judge,(Adhoc- 1), Ernakulam, allowed the appeal in part and thus, while confirming the conviction, the accused is sentenced to undergo simple imprisonment till rising of court and to pay fine of Rs.1,05,000/- and the default sentence is fixed as one month simple imprisonment. It is also ordered that on realisation of the fine amount the same shall be paid to the complainant as compensation under Section 357(1) of Cr.P.C. It is the above judgment of the courts below and the conviction and sentence challenged in this revision petition. 4. I have heard Sri. Abraham Mathew learned counsel appearing for the revision petitioner and I have perused the judgments of the courts below. 5. The learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to prove the execution and issuance of the cheque as well as the transaction and also the passing of consideration. Crl.R.P.NO.979 OF 2011 4 According to the learned counsel the trial court as well as the appellate court failed to consider the above vital defects of the prosecution case and came into an erroneous conclusion that the complainant has established the case against the revision petitioner. In order to substantiate the above contention, after inviting my attention to the cross examination of PW1, the learned counsel submitted that even according to the complainant he has no definite idea or understanding about the transaction. The learned counsel submitted that though PW1 has admitted about seven or eight transactions between himself and the revision petitioner, no details are given and the facts brought out through the cross examination of PW1 would show that no transaction was taken place as claimed by him. Reiterating the stand taken by the defence during the trial and at the stage of appeal, the counsel submitted that the cheque in question was given as a security when the revision petitioner had availed a loan of Rs.90,000/- from the complainant during the year 1997 and that liability was discharged and as such no amount was due Crl.R.P.NO.979 OF 2011 5 to the complainant. It is also the case of the learned counsel for the revision petitioner that though the revision petitioner had taken steps during the trial, to produce the income tax return of the complainant for the relevant period and the account maintained by him, he has not produced the same and therefore, presumption can be drawn against the complainant but the courts below did not prepare to draw adverse presumption against the complainant. 6. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner. I have carefully perused the judgment of the trial court as well as the appellate court and also considered the deposition of PW1 which read over by the counsel for the revision petitioner. 7. One of the arguments advanced by the learned counsel for the revision petitioner is that absolutely there is no details either in the complaint or in the lawyer notice with respect to the transaction claimed by the complainant. The trial court as well as the appellate court considering the complaint and evidence of PW1 observed that the specific Crl.R.P.NO.979 OF 2011 6 case of the complainant is that the accused borrowed Rs.90,000/- from the complainant and towards the discharge of the said liability the revision petitioner has issued the cheque in question. In this juncture, it is also relevant to note that the complainant has filed an affidavit in lieu of chief examination and he was subjected to lengthy cross examination. During the cross examination the complainant had voluntarily deposed before the trial court that there were several transactions between the revision petitioner and the complainant and almost all the liability connected with the prior transactions were discharged by the revision petitioner. According to the complainant the cheque in question was issued connected with the transaction that taken place on 10.5.2008 and towards the discharge of that liability Ext.P1 cheque was issued. The trial court in paragraph 6 of its judgment has specifically found that PW1 in the cross examination stated that 6 or 7 times the accused borrowed amount from him and repaid the same and he used to get interest for the same and used to receive post dated cheque Crl.R.P.NO.979 OF 2011 7 for the amount. On the basis of the evidence adduced by PW1 and after considering the plea taken by the accused, the trial court formulated the question that what is the reason for not getting back the cheque given by the accused to the complainant, if the same was given as security for the previous transaction. In this case, it is relevant to note that except the explanation given through the 313 statement of the accused/revision petitioner, no legal evidence is adduced by the accused to substantiate his case that the cheque in question was the one which entrusted with the complainant connected with the previous transaction. The trial court after elaborate consideration of the evidence and the plea of the defence, came to the conclusion that the explanation offered by the revision petitioner for not getting back the cheque in question is not acceptable, if the same was issued as a security, and discharging the liability. The appellate court has also approved the above observations and findings of the courts below. 8. Going by the judgments of the trial court as well as Crl.R.P.NO.979 OF 2011 8 the appellate court. In the light of the submission advanced by the learned counsel, the question to be considered is whether the trial court as well as the appellate court is justified in convicting the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and whether any interference is called for. It is a case where the complainant himself mounted to the box and gave the evidence in support of the complainant that the revision petitioner had obtained a loan of Rs.90,000/- and towards the discharge of such liability, revision petitioner has issued Ext.P1 cheque. In support of the above allegation and to substantiate the claim, the complainant he had produced Ext.P1 cheque which pertained to the account of the revision petitioner and which bear the signature of the accused. The Apex court in several decisions as held that mere denial of the execution of the cheque is not sufficient to absolve him from the liability. The present case as rightly observed and found by the trial court as well as the appellate court, the complainant has adduced evidence in support of his allegation Crl.R.P.NO.979 OF 2011 9 of the transaction. Though PW1 was subjected to severe cross examination, nothing brought on record to discredit his version especially when he had produce Ext.P1 cheque from his possession. If that be so, as rightly found by the trial court as well as the appellate court the complainant has complied all the legal formalities mentioned under Section 138(b), 142(b) of NI Act and consequently, the complainant is entitled to get the presumption under Section 139 of the NI Act. 9. If that be so, the next question to be considered is whether the defence had succeeded in rebutting the presumption. In the present case it is relevant to note that though the complainant had deposed before the court below that there were series of transaction between the complainant and the revision petitioner those aspects were not seriously challenged by the revision petitioner, rather admitted the same by the revision indirectly. I am persuaded to arrive into such a conclusion only because, even according to the revision petitioner, he had admitted the transaction that Crl.R.P.NO.979 OF 2011 10 taken place during the year 1997. According to the counsel the liability out of those transaction was completely discharged. But no evidence is adduced in this regard. Therefore, the above version of the accused is only lame excuse to get rid of the liability. So, in toto it can be seen that the case of the complainant is more correct and he had deposed before the court regarding number of transactions that taken place between himself and the revision petitioner. In the absence of any positive evidence from the part of the revision petitioner to show that the cheque in question pertained to 1997 transaction and he had discharged that liability, mere explanation unsupported by evidence as to how Ext.P1 cheque reached in the hands of the complainant it cannot be said that the defence had succeeded in establishing the case. Non-production of Income Tax return or statement of accounts from the part of the complainant will not improve the case of the revision petitioner. Therefore, the failure in producing the Income Tax return and statement of accounts cannot be treated as a ground to hold that there was no Crl.R.P.NO.979 OF 2011 11 transaction as claimed by the complainant. Therefore, I am of the considered opinion that the revision petitioner has miserably failed to discharge his burden to rebut the presumption under Section 139 of the Negotiable Instruments Act, which is available in favour of the complainant since he had established his case against the revision petitioner. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent findings of the courts below and the conviction is confirmed. 10. Though the trial court has imposed the sentence of 6 months imprisonment, the appellate court has reduced the same into one day simple imprisonment i.e., till the rising of the court, and after setting aside the direction to pay compensation, the petitioner is sentenced to pay fine of Rs.1,05,000/-. Under the above circumstances, I find no reason to interfere with the sentence also. In the result, this revision petition is disposed of confirming the conviction and sentence imposed against the revision petitioner. But the petitioner is granted 45 days time Crl.R.P.NO.979 OF 2011 12 to receive the sentence of imprisonment and to pay the fine amount as fixed by the appellate court and it is made clear that the default sentence fixed by the appellate court will be attracted only in case of failure on the part of the revision petitioner in depositing the fine amount within 45 days from today. Accordingly, the revision petitioner is directed to appear before the trial court on 23.05.2011. Coercive steps if any pending against the revision petitioner shall be deferred till 23rd May, 2011. The Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE pm