IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.Rev.Pet.No. 1476 of 2005() ------------------------------ CRL.A.86/2002 OF ADDL. SESSIONS COURT (ADHOC), KALPETTA, CC. NO. 360/1995 OF CHIEF JUDICIAL MAGISTRATE, KALPETTA. .................... PETITIONER/ APPELLANT/ ACCUSED: ------------------------------------------------------ K. KOYA, QUARTERS NO.4, THAZHZEKULAPURATHU HOUSE, WARD NO.11, VEEDU NO.199, A.R. NAGAR, MALAPPURAM, NOW RESIDING AT VADAKKANDY HOUSE, CHELEMBRA POST, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR, ADV. SRI.K.P.SUDHEER. RESPONDENTS/ COMPLAINANT: ----------------------------------------------- 1. P.K. MOIDEEN, S/O. AHAMMEDKUTTY, PANACHIKUNNEL, THALIPUZHA, LEKKIDY P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED FOR R2, ADV. SRI.M.P.ASHOK KUMAR FOR R1. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V. GIRI, J. ------------------------------- Crl.R.P.NO. 1476/ 2005 --------------------------------- Dated this the 21st day of August, 2008. ORDER The accused in CC.No.360/1995 on the files of the Chief Judicial Magistrate Court, Kalpetta is the petitioner in this Criminal Revision Petition. He was prosecuted for an offence under section 138 of the Negotiable Instruments Act. The trial court found him guilty. He was convicted under section 138 of the Act and sentenced to undergo rigorous imprisonment for a period of two months. No fine was imposed by the trial court. The appellate court confirmed the conviction but imposed a sentence requiring the accused to pay a fine of Rs.25,000/- with a default sentence of simple imprisonment for two months. There was a further direction that if fine is remitted, Rs.20,000/- will be paid to the complainant towards compensation. The same has been challenged in this revision. 2. The complaint was instituted inter alia on the allegation that the complainant paid an amount of Rs.30,000/- to arrange a visa to enable the complainant to get a job in the gulf countries. Crl.RP.1476 /2005 2 But the accused was not able to do so. The complainant demanded the amount back and the accused gave two cheques for Rs.15,000/- each. Apparently separate prosecution was launched in relation to other cheque. When the cheque involved in this case was presented for encashment, it was dishonoured. Notice was issued. According to the accused Ext.D2 reply was sent and the contention raised in Ext.D2 is to the effect that as a matter of fact the accused borrowed an amount of Rs.60,000/- from the complainant but he had returned he same. Rs.10,000/- was paid back vide a cheque, the details of which are given in Ext.D2. Rs.50,000/-, according to the accused was paid back in cash. In so far the cheque involved in this case and the other cheque are concerned according to the accused, the cheques were not returned inspite of payment effected by the accused. Ext.D1 is a receipt which according to the accused was issued by the complainant at the time when he paid back the amount of Rs.50,000/- 3. The trial court went on to find that the presentation of the cheque for a sum of Rs.15,000/- it's dishonour and the subsequent formalities have been proved by the complainant. Crl.RP.1476 /2005 3 The version given by the accused that he paid back in cash an amount of Rs.50,000/- was not accepted. Ext. D1 receipt was not accepted by the court below essentially on the premise that no attempt was made by the accused to examine the scribe of Ext.D1 receipt. It is therefore the trial court convicted and sentenced as mentioned above and the same has been affirmed by the appellate court. 4. I heard learned counsel for the petitioner /accused and learned counsel for the complainant/respondent. Learned counsel for the petitioner submits that the accused did make an attempt to prove Ext.D1 receipt. An application for sending Ext.D1 receipt to the handwriting expert was actually filed before the trial court but was not allowed by the trial court stating no reason whatsoever. An opportunity was not given to the accused, it is contended. It is further contended that there is discrepancy in the version of PW1 with regard to the quantum of the amount stated to have been advanced by the complainant in favour of the accused. Whereas the complaint states that an amount of Rs.30,000/- was advanced. DW1 in his deposition stated that actually an amount of Rs.40,000/- was advanced but Crl.RP.1476 /2005 4 Rs.10,000/- was repaid by means of cheque which was encashed. 5. Learned counsel for the complainant submits on the other hand that no genuine attempt was made by the accused to prove Ext.D1. Service of Ext.D2 was specifically denied by the complainant but no steps were taken to prove the actual service of Ext.D2 on the complainant. The version given by the accused that an amount of Rs.60,000/- was actually borrowed is inconsistent with the fact that admittedly two cheques for an amount of Rs.15,000/- each alone were issued by the accused to the complainant for the discharge of the liability. 6. Having heard learned counsel on both sides, having perused the records and having gone through the judgment of the courts below, I am not satisfied that there is no perverse finding of fact by the courts below warranting interference by this court under section 397 of the Code. The courts below cannot be said to have committed an illegality in finding that the cheque in question was admittedly issued by the accused, that there was admittedly transaction between the complainant and the accused, that the cheque was actually dishonoured for insufficiency of funds and therefore the cause of action for the Crl.RP.1476 /2005 5 complaint under section 138 of the Act was proved to be completed in the instant case. Essentially the plea of the accused was one of discharge and the only evidence sought to be adduced in this regard is Ext.D1. It is the case of accused also that Ext.D1 was written by a person other than the complainant. The accused is not in a position to say who was the scribe of Ext.D1. Significantly the accused has not been able to show that any other person witnessed the return of the money on 28.3.1995 the date of Ext.D1. In other words, there is a total dearth of contemporaneous evidence to substantiate Ext.D1, or return of money stated to have been effected by the accused on 28.3.1995. Though learned counsel for the petitioner submits that the application for sending Ext.D1 to the handwriting expert for an expert opinion was filed, the original of the application is not seen in the files. I would have normally embarked upon a further enquiry with regard to this question, since the learned counsel placed before me a certified copy of the application but for the reason that in my view no real purpose will be served even if that application is allowed at this stage. As noted above, it is not the case of the accused that Ext.D1 was written by the Crl.RP.1476 /2005 6 complainant. He is not able to identify the scribe of Ext.D1. There is no other witness to the transaction. Even if there is an opinion by the expert that the writing on Ext.D1 does not tally with the admitted writing of the complainant, such evidence by the expert in terms of section 45 of the Evidence Act would obviously not bind the court below. The trial court had embarked upon a comparison of the signature in Ext.D1 with the signature of the complainant in the complaint and found discrepancies between the same. But in the circumstances, in the absence of any other evidence to substantiate the version of the accused regarding the alleged return of the amount of Rs.50,000/- on 28.3.1995, I am not inclined as such to accept the plea of the learned counsel for despatch of Ext.D1 to the handwriting expert. 7. For all these reasons, I am of the view that the conviction of the accused under section 138 of the Negotiable Instruments Act does not suffer from any illegality or error of jurisdiction, nor has it resulted in any injustice. The conviction of the accused is therefore upheld. 8. As regards the sentence of fine, after hearing counsel on both sides specifically on this aspect, I am of the view that Crl.RP.1476 /2005 7 interests of justice would be met if a fine of Rs.16,000/- (sixteen thousand only) is imposed on the accused. The accused shall remit the amount within a period of two months and once the amount is remitted Rs.15,000/- shall be paid over to the complainant under section 357(3) of the Cr.P.C. V. GIRI, JUDGE. Pmn/