IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 Crl.Rev.Pet.No. 1367 of 2011() ------------------------------------------ CRA.NO. 636/2009 of I ADDL. SESSIONS COURT, THIRUVANANTHAPURAM ST.NO. 1722/2007 of JUDICIAL 1ST CLASS MAGISTRATE COURT-IV, NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANT-ACCUSED -------------------------------------------------------------------- VAHEEDA, W/O.SHAJAHAN, ANAKALUVILA PUTHEN VEEDU, T.B.JUNCTION, NEYYATTINKARA. BY ADV. SRI.V.R.GOPU RESPONDENT(S): RESPONDENTS/COMPLAINANT-STATE ------------------------------------------------------------------------------------- 1. AJAYA KUMAR, ADARSH BHAVAN, PUNNAKKADU, PERUMPAZHUTHOOR, NEYYATTINKARA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J ------------------------------- Crl.R.P.No.1367 of 2011 ---------------------------------------- Dated this the 27th day of May, 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 learned counsel for the petitioner submitted that the trial court as well as the appellate court committed wrong in accepting the case of the complainant and on convicting the petitioner for the offence under Section 138 of the NI Act. According to the learned counsel when the revision petitioner/accused denied transaction between the complainant and the accused, it is for the complainant to establish the transaction supported by evidence. According to the learned counsel the substantial variation in the evidence of the petitioner regarding the transaction, the petitioner cannot be held liable under Section 138 of the NI act. The learned counsel pointed out that during the cross Crl.R.P.No.1367 of 2011 2 examination, the complainant has stated that the husband of the revision petitioner approached the complainant demanding loan for the purpose of purchasing materials to the shop, but the amount was given to the accused. According to the learned counsel the above version of the complainant is against his own version. The above submission of the learned counsel, is clearly on the basis of facts which are produced in the case properly appreciated by the trial court as well as the appellate court and rejected the contention of the revision petitioner. 3. In this juncture, it is relevant to note that the complainant as well as the revision petitioner/accused are not strangers and it is also the admitted case that the complainant and the husband of the revision petitioner are friends and both the accused as well as her husband conducting business. The specific case of the complainant is that the accused borrowed money for the business purpose. In support of the above claim when the complainant was examined he had stated that the husband Crl.R.P.No.1367 of 2011 3 of the accused approached the complainant for purchasing materials to the shop. According to the counsel in the very same deposition the complainant has also deposed that the petitioner conducting fancy shop near the junction, Alamood. It is quite natural that for the conduct of business run by the wife, husband will arise money and vice versa. In the present case, the complainant has very particular in his deposition that the money was demanded by the husband of the revision petitioner for the purpose of business of the revision petitioner. The learned counsel for the petitioner miserably failed to point out any statement in the deposition of the complainant that the husband of the revision petitioner demanded or obtained money for the business conducted by himself. 4. In this juncture, it is relevant to note that though a notice was issued initially the complainant and received by the revision petitioner she did not care to reply to the above notice. It is further relevant to note that as I indicated earlier parties are not strangers. The admitted case of the Crl.R.P.No.1367 of 2011 4 revision petitioner is that, she had obtained loan of Rs.10,000/- from the complainant who is a money lender and she had to repay the amount by way of installment on daily basis and towards the said transaction revision petitioner had issued a cheque as security. According to the revision petitioner it is the above cheque misused by the complainant to launch this complaint. I am unable to accept the above explanation and defence and I reject the same, as rightly done by the trial court as well as the appellate court. In the present case, the complainant has issued a notice demanding the repayment of the loan availed by the revision petitioner but she did not care to reply and the complainant has adduced evidence in support of his claim and he had produced the cheque in question from his possession. The cheque bear the signature of the revision petitioner and the cheque pertain to the account maintained by the revision petitioner. Except the bare explanation given at the time of 313 statement, no evidence is adduced by the revision petitioner to explain as to how the cheque in Crl.R.P.No.1367 of 2011 5 question reached in the hands of the complainant. As I indicated earlier, the complainant has already adduced his evidence and made out a prima facie case regarding the liability and issuance of the cheque. Therefore, the question to be considered is whether the revision petitioner has succeeded in rebutting the presumption, which is otherwise available in favour of the complainant under Section 139 of the NI Act. The apex court has held in several decisions that mere explanation will not sufficient to discharge the burden of rebutting the presumption. In the present case, the revision petitioner has already admitted transaction with the complainant though not as in terms of the claim of the complainant. But according to her the amount involved in the transaction between herself and the complainant is only 10,000/-, but she had admitted the issuance of the cheque. In the absence of any positive evidence or materials in support of the version of the defence it is to be considered as only an attempt to escape from the liability under Section 138 of the NI Act and consequently the Crl.R.P.No.1367 of 2011 6 revision petitioner is miserably failed to rebut the presumption under Section 139 of the NI Act. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent findings arrived on the trial court as well as the appellate court and accordingly, the conviction recorded by the courts below is confirmed. 5. Regarding the sentence it is to be noted that though the trial court has imposed a sentence of three months simple imprisonment and to pay a fine of Rs.3,05,000/-, the appellate court has reduced the period of simple imprisonment into till the rising of the court and converted the fine into a compensation under Section 357(3) and fixed the compensation amount as Rs.3,10,000/. The appellate court directed the revision petitioner to appear before the trial court on 31.5.2011 to serve the modified sentence and to pay compensation amount. Therefore, I find no reason to interference either with the sentence or with the direction to pay compensation. However, the petitioner is granted one month time to serve the modified sentence as ordered Crl.R.P.No.1367 of 2011 7 by the appellate court and to pay the compensation amount fixed by the very same 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 petitioner in appearing before the trial court and in paying the compensation amount on or before 30.6.2011. Coercive steps if any pending against the revision petitioner shall be deferred till 30.06.2011. V.K.MOHANAN, JUDGE pm/