IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 Crl.Rev.Pet.No. 130 of 2008() ----------------------------- CRA.164/2006 of II ADDL. SESSIONS COURT, PALAKKAD ST.4336/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- SHAJI, S/O.PRABHAKARAN, ARANGAN VEEDU, VARANTHARAPPILLY P.O., THRISSUR. BY ADV. SRI.V.BINOY RAM RESPONDENTS: APPELLANTS/COMPLAINANT ----------------------------------- 1. JAYAPALAN, S/O.VELAPPAN, VALAPPIL, ALACHANTHODE, AMBATTUPALAYAM, CHITTUR COLLEGE, CHITTUR TALUK, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.130 of 2008 ---------------------------------------- Dated this the 23rd 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 Negotiable Instruments Act. The cheque is for an amount of Rs.25,850/- The said cheque was allegedly issued towards a liability to pay Rs.55,850/- to the complainant by the accused. Two cheques were issued and this prosecution relates to only one of those two cheques dated 07/08/2004 for Rs.25,850/-. So far as the other cheque for Rs.30,000/- is concerned, no prosecution has been initiated, it is submitted. The cheque is produced before the court as Ext.P3. 2. The petitioner now, after the appellate modification of the sentence, faces a sentence of S.I for a period of one month. There is a direction to pay an amount of Rs.22,850/- to the complainant as compensation and in default to undergo S.I for a period of one month. 3. The signature in the cheque is admitted. That the cheque was dishonoured on the ground of insufficiency of funds and that the statutory procedure and time table has been Crl.R.P.No.130/08 2 followed scrupulously is not denied. Notice of demand though duly received and acknowledged did not evoke any response. No explanation whatsoever is offered for such silence and inaction on receipt of the notice of demand. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused did not adduce any defence evidence. In the course of trial, a plea was advanced that there were transactions relating to a tractor between the petitioner and the complainant. The petitioner had agreed to sell the tractor to the complainant. There was hire purchase transaction between the petitioner and a financier in respect of that vehicle. The de facto complainant had paid amounts to the complainant. The transaction did not get through. The financier seized the vehicle and to avoid the seizure of the vehicle, the de facto complainant had to pay Rs.1.5 lakhs to the financier. The financier, at that point of time, had obliged the complainant by handing over signed blank cheques which were earlier given by the petitioner. The financier and the complainant are now misutilising one of those cheques to stake the present claim. In support of this theory, Ext.D1, the agreement between the petitioner and the complainant was produced on the side of the petitioner. The complainant Crl.R.P.No.130/08 3 admitted Ext.D1 transaction; but took the plea that that transaction has nothing to do with the transaction of borrowal which led to issue of Exts.P1 and P3. 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. The appellate court did of course indulgently modify and reduce the sentence. 4. The petitioner claims to be aggrieved by the impugned judgments even now. What is the grievance? Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability. He contends that the execution of the cheque has not been proved though the signature in the cheque has been admitted. 5. It is trite that admission of signature is not synonymous with admission of execution. But it cannot be lost sight of that the admission of signature in a document goes a Crl.R.P.No.130/08 4 long way to prove its execution. It is in this context that the evidence of PW1 has to be appreciated. PW1 stated clearly that the cheque was handed over by the accused to him for the discharge of a legally enforcible debt/liability. In the light of that evidence of PW1, the contentions have to be considered. Ext.D1 transaction is admitted. But it is contended that the borrowal had nothing to do with the said transaction. It is further admitted that a complaint was filed before the police and the petitioner, complainant/PW1 and the financier were before the police in connection with that complaint. It is also admitted that there was a claim payment for the amount of the cheque before the police. 6. The crucial question is whether the courts below were justified in accepting and acting upon the evidence of PW1. The evidence of PW1 is eminently supported by his ability to produce Ext.P1 cheque which is admittedly drawn on a cheque leaf issued to the petitioner by his bank to operate his account and which admittedly bears the signature of the petitioner. It is significant that there is not a semblance of a specific suggestion even to PW1 that the cheque was handed over as blank signed cheques to the financier and that from the financier, PW1 had come into Crl.R.P.No.130/08 5 possession of such blank signed cheques which he had misutilised to stake false claims as Exts.P1 and P3. Such a specific suggestion is not to be seen at all even when one strenuously goes through the cross-examination of PW1. What perhaps is sufficient to tilt the scales in favour of the complainant convincingly and beyond doubt, is the admitted, improbable and artificial conduct of the petitioner remaining silent and inactive when he received the notice of demand Ext.P4. The silence and inaction on the part of the petitioner on receipt of Ext.P4 notice is eloquent. That is not the conduct which can be expected of any reasonable and prudent person if he were in such circumstances as the petitioner claims himself to be when he received Ext.P4 notice. The oral evidence of PW1 read along with artificial conduct of the petitioner on receipt of Ext.P4 and the total absence of any specific suggestion even to PW1 that the cheque were handed over as blank signed cheques to the financier from whom PW1 allegedly obtained it as also the total and complete absence of any evidence about Ext.P1 on the part of the petitioner persuade me to hold that the courts below have not committed any error in arriving at the finding of the fact that the cheque has been issued for the due discharge of any Crl.R.P.No.130/08 6 legally enforcible debt/liability by the petitioner to PW1. 7. The presumption under Section 139 N.I.Act does also stare at the petitioner. An indictee need not disprove the case of the prosecution/complainant. He need not prove his own case to the hilt and beyond reasonable doubt. But he must prove his case by adopting the yardstick of preponderance of possibilities and probabilities. At least that burden he must discharge. I am of the opinion that the attempt made in this case by the cross- examination of PW1 and the production of the admitted Ext.D1 document fall significantly short of the expectations on the petitioner who is bound to discharge his burden under Section 139 N.I.Act. 8. The above discussions lead me to the conclusion that the verdict of guilty and conviction do not warrant any interference. No other contentions are raised on merits. Lastly and finally, it is prayed that the sentence imposed may be modified and reduced. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I.Act in the decision in Anilkumar vs.Shammi [2002(3)KLT 852]. In the facts and circumstances of the case, I find no compelling reasons which can persuade this court to Crl.R.P.No.130/08 7 insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown to the petitioner but subject only to the compulsion of adequately and fairly compensating the victim who has now been compelled to fight two rounds of legal battle and to wait from 2004 for the redressal of his grievances. The challenge can succeed only to the above extent. 9. The learned counsel for the petitioner prays that if this court is not inclined to interfere with the verdict of guilty and conviction, appropriate modification of the sentence may be made. The petitioner may be directed only to pay an appropriate amount as compensation. No substantive sentence may by imposed, it is prayed. 10. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent. 11. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I.Act are upheld. Crl.R.P.No.130/08 8 c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C to pay an amount of Rs.30,000/- (Rupees thirty thousand only) as compensation and in default, to undergo S.I for a period of forty five days. If realised, the entire amount shall be released to the complainant as compensation. 12. The petitioner shall have time till 29/02/2008 to raise and pay the amount and thus avoid the default sentence. The impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/03/2008 to serve the modified sentence hereby imposed. If the petitioner does not so appear before the learned Magistrate on or before 01/03/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.130/08 9 Crl.R.P.No.130/08 10 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008 Crl.R.P.No.130/08 11