IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 Crl.Rev.Pet.No. 3702 of 2007() ------------------------------ CRA.288/2004 of SESSIONS COURT, TRIVANDRUM CC.314/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- K.RAJAGOPALAN NAIR, S/O KUTTAN PILLAI, T.C.NO.28/608, PUNNAPURAM, PETTAH POST OFFICE, THIRUVANANTHAPURAM. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: RESPONDENTS/COMPLAIANTS & STATE -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. JAYAKUMARI, D/O DEVAKI AMMA, NO.G-5, POLICE QUARTERS, POONTHURA P.O., THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SRI.SASTHAMANGALAM S. AJITHKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.3702 of 2007 ------------------------------------- Dated this the 16th day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. The petitioner, after the appellate modification of the sentence, faces a sentence of imprisonment till rising of court. He is further directed to pay an amount of Rs.51,000/- in all as compensation and costs and in default to undergo s.i for a period of 4 months in all. 2. The cheque is for an amount of Rs.50,000/-. It bears the date 9.6.98. Signature in the cheque is admitted. Transaction of loan between the petitioner and the complainant is not disputed. That the cheque was handed over after affixing the signature of the accused is again not disputed. The short contention that is raised in the course of trial is that the cheque was handed over as security when a loan transaction of Rs.25,000/- was entered into between the petitioner and the complainant. It is alleged that the cheque was handed over to one Murukesan, an agent of the complainant. Payments have Crl.R.P.No.3702 of 2007 2 been made to the said Murukesan to discharge the liability. Even after discharge, false claims are being raised by the complainant. This in short is the plea raised. 3. The complainant examined himself as PW1 and proved Exts.P1 to P8. The accused examined himself as DW2 and a person who had allegedly conducted a mediation as DW1. Exts.D1 and D2 were also marked. They were marked in an obvious attempt to show that the complainant was engaged in the activity of money lending. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I.Act. Accordingly they proceeded to pass the impugned concurrent judgments. 5. The petitioner has come up in revision. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contentions raised before the courts below but ultimately after discussions at the bar only pleads that the petitioner may be granted some further time to make the payment and avoid the default sentence. Crl.R.P.No.3702 of 2007 3 6. I have considered the contentions raised. The evidence of PW1 coupled with her ability to produce Ext.P1 cheque which admittedly bears the signature of the petitioner and is drawn on a cheque leaf issued to the petitioner by his bank to operate his account is there primarily against the petitioner. The admission of the financial transaction of loan between the petitioner and the complainant does also eminently support the version of the complainant. A reading of the reply notice Ext.P5, the 313 statement of the accused and the evidence tendered by him as DW2 would show that he had not raised the contention presently taken at the earlier appropriate stage. The presumption under Section 139 of the Negotiable Instruments Act does also stare at the petitioner. The evidence of DW1 and the complainant himself as DW2 and the plea of discharge cannot obviously be accepted in the absence of a specific plea to that effect in Ext.P5 reply notice. The presumption under Section 139 of the Negotiable Instruments Act, the burden to rebut which rests squarely on the shoulders of the petitioner, has not at all been discharged by the evidence of Dws 1 and 2 as also Exts.D1 and D2. The cross examination of PW1 is also not sufficient to discharge the burden to rebut the said presumption. The accused Crl.R.P.No.3702 of 2007 4 has not succeeded in proving his case or even in generating a reasonable doubt about the case of the complainant. Notwithstanding Section 139 of the Negotiable Instruments Act, the accused has no burden to disprove the case of the complainant or to establish his case beyond reasonable doubt. But the burden certainly rests on the petitioner/accused to show at least by the test of preponderance of possibilities and probabilities that his case is true or that there exists reasonable doubt about the case of the complainant. The petitioner in this case has failed in his attempt to do either of the 2. 7. I do not in these circumstances find merit in the contentions raised on merit against the verdict of guilty and conviction. The sentence imposed is most lenient, modest and reasonable. The cheque was issued in 1998 and I do not find much merit in the prayer for any long further time to make the payment. However, I am satisfied that the petitioner can be given a breathing time to raise and pay the amount and avoid the default sentence. 8. In the result, this revision petition is dismissed, but with the observation that the impugned sentence shall not be executed till 29.02.08. On or before that date, the petitioner can Crl.R.P.No.3702 of 2007 5 raise and pay the amount and avoid the default sentence. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 01.03.08 for execution of the impugned sentence imposed. 9. In the nature of the relief which I have chosen to grant, it is not necessary to wait for issue and return of notice to the respondent, I am satisfied. (R.BASANT, JUDGE) rtr/-