IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH MAY, 2010 / 28TH VAISAKHA, 1932 Crl.Rev.Pet.No. 1546 of 2010 -------------------------------- (Crl.A.885/2008 of District and Sessions Court (ADHOC-III), North Paravur and ST.1692/2005 of JUDL. FIRST CLASS MAGISTRATE COURT-I, ALUVA) .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- AYOOB ALIAS VEERAVU, S/O.ALIYAR, VAZHAKKA MADOM, VALIYATHUNADU, ALUVA. BY ADV. SRI.P.M.ZIRAJ RESPONDENTS/RESPONDENT/COMPLAINANT & STATE: --------------- 1. BALAKRISHNAN NAIR, S/O.NARAYANA MENON, VADAKKEDATHU HOUSE, VELIYATHUNADU, ALUVA. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, DISTRICT AND SESSIONS COURT, NORTH PARAVUR. R2 BY PUBLIC PROECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1546 of 2010 --------------------------------------------- Dated this the 18th day of May, 2010 O R D E R The revision petitioner, who is an accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'), preferred this Criminal Revision Petition challenging the judgments of the trial court as well as the lower appellate court by which he is convicted for the said offence. 2. The case of the complainant is that the revision petitioner/accused, being the friend of the complainant, borrowed a sum of Rs.3 lakhs and when demanded for repayment, the revision petitioner issued Ext.P1 cheque, which when presented for encashment, is dishonoured for want of sufficient fund in the account maintained by the revision petitioner. Hence, the complainant approached the trial court by filing a complaint and Crl.R.PNO.1546 of 2010 :-2-: during the trial of the complainant, the complainant himself gave evidence as PW1 and produced Exts.P1 to P7 documents. No evidence is adduced from the side of the defence. Thus, on the basis of the evidence adduced by the complainant, the trial court found that the accused is guilty under Section 138 of the N.I.Act and accordingly, he is convicted and sentenced to undergo simple imprisonment for a period of one year and also to pay compensation of Rs.3 lakhs under Section 357(3) of Cr.P.C. and in default, he was further directed to undergo simple imprisonment for sixty days. Though the revision petitioner challenged the above conviction and sentence by preferring Crl.A.No.885 of 2008, by judgment dated 22.1.2010, the court of Additional District and Sessions Judge (ADHOC-III), North Paravur confirmed the finding and conviction against the accused under Section 138 of the N.I.Act by the trial court, but modified and reduced Crl.R.PNO.1546 of 2010 :-3-: the sentence to simple imprisonment for six months and to pay the fine of Rs.3 lakhs, which is the cheque amount, and the default sentence is fixed as three months simple imprisonment and also directed that the entire fine amount realised, shall be given to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. 3. The only contention raised by the counsel for the revision petitioner/appellant/accused is that the cheque in question, which is lost from the possession of the accused, is misused by the complainant for falsely filing a complaint against the accused. The same is the contention raised in the trial court as well as in the lower appellate court and such contention was found against the revision petitioner. The complainant, by producing Ext.P1 cheque from his possession and by adducing oral evidence, substantiated his claim regarding the transaction between himself and the Crl.R.PNO.1546 of 2010 :-4-: revision petitioner and the execution and issuance of Ext.P1 cheque. Though the accused took a contention that Ext.P1 cheque was lost from his possession, he could not apprise the trial court as well as the lower appellate court as to how the cheque in question contained the signature of the accused and reached the hands of the complainant. The trial court has also found that the accused failed to explain as to why the complainant preferred a complaint against the accused if the transaction is not true. The Apex Court has held time and again that mere denial of the execution and issuance of the cheque is not sufficient to rebut the statutory presumption. This Court in the decision reported in Bhaskaran Nair v. Mohanan [2009(2) KLT 897] has held that where the transaction and handing over of cheque is totally denied by an accused, the veracity of the prosecution case, as to transaction and execution of cheque, has to be examined in Crl.R.PNO.1546 of 2010 :-5-: reference to the materials tendered by the prosecution. The grounds mentioned by the trial court to dispel the contention raised by the accused regarding the loss of Ext.P1 cheque appear to be very reasonable and correct. When the complainant produced the cheque from his possession which contained the signature of the accused, it is heavily upon the accused to give a proper account as to how and when Ext.P1 cheque reached in the hands of the complainant. As correctly pointed out by the trial court, the accused has no proper explanation regarding those aspects. In the absence of at least a probable account, it cannot be said that the accused had discharged his burden in rebutting the presumption available in favour of the complainant in the light of the materials and evidence on record. In the light of the above facts and circumstances, I find no illegality in the finding arrived on by the trial court as well as the lower appellate Crl.R.PNO.1546 of 2010 :-6-: court and there is no merit in the Crl.R.P. 4. Learned counsel for the revision petitioner submitted that the revision petitioner is a poor man and therefore, a lenient view may be taken in the matter of sentence and some breathing time may be granted to make the payment. The above submission can be considered in favour of the revision petitioner. At the very same time, it is relevant to note that the alleged transaction had taken place during the year 2004 and thereafter, now six years are over. The trial court pronounced its judgment on 23.8.2008 and the lower appellate court passed the judgment on 22.1.2010. Having regard to the facts and circumstances involved in the case, I am of the view that while confirming the conviction recorded by the trial court as well as the lower appellate court, some modification can be made with respect to the sentence and also some time may be granted to the revision Crl.R.PNO.1546 of 2010 :-7-: petitioner to receive the sentence, including the making of the fine amount. 5. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. The sentence awarded by the trial court and modified by the lower appellate court is further modified and reduced and accordingly, he is sentenced to undergo imprisonment till the rising of the court and he is sentenced to pay a sum of Rs.3,35,000/- (Rupees Three lakh Thirty Five thousand only) as fine. The entire fine amount, if realised, shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. The revision petitioner is directed to appear before the trial court on 18.8.2010 to receive the sentence of imprisonment and to make the deposit of the fine amount. If there is any default on the part of the Crl.R.PNO.1546 of 2010 :-8-: revision petitioner in appearing before the court below as directed above, the trial court is free to take coercive steps to procure the presence of the revision petitioner and to execute the sentence. Subject to the above modification, this Criminal Revision Petition is disposed of. V.K.Mohanan, Judge. MBS/ Crl.R.PNO.1546 of 2010 :-9-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ----------------------------- ------- J U D G M E N T Crl.R.PNO.1546 of 2010 :-10-: DATED: -2- 2010 Crl.R.PNO.1546 of 2010 :-11-: