IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 Crl.Rev.Pet.No. 270 of 2001(C) ------------------------------------------- CRL.A.6/1994 OF SESSIONS COURT, PATHANAMTHITTA, CC.594/1992 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVISION PETITIONER/ APPELLANT/ ACCUSED: --------------------------------------------------------------------- P.J. JOSE, ATTENDER, BOTANY DEPARTMENT, ASSUMPTION COLLEGE, CHANGANACHERRY. BY ADV. MR.K.M.VARGHESE. RESPONDENTS/ RESPONDENTS/ COMPLAINANT: ----------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GEORGE VARKEY, SANKARAMANGALAM FINANCIERS, THIRUVALLA. R1 BY PUBLIC PROSECUTOR MR. JAI GEORGE, R2 BY ADVS. MR.BOBY MATHEW, SMT.K.MEERA, MR.E.T.MATHEW. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/03/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 270/2001-C: ORDER ON CRL.M.P. NO. 1144/2001 IN CRL.R.P. NO. 270/2001 DISMISSED 04/03/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.No.270 of 2001 - C ----------------------------- Dated this the 4th day of March, 2009 O R D E R The accused in C.C.No.594/92 on the file of the Judicial First Class Magistrate, Thiruvalla, who was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, for short the NI act, has filed this revision petition. The learned Magistrate finding him guilty of the offence convicted him thereunder sentencing him to undergo simple imprisonment for six months and to pay an amount of Rs.25,000/- as compensation to the complainant with default term of simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. In the appeal preferred by the accused before the Sessions Court, Pathanamthitta, conviction was confirmed but sentence modified to the extent of setting aside the default term of simple imprisonment awarded for non payment of the compensation ordered. Aggrieved by the conviction and sentence, the revision petitioner/accused has come up in this revision impeaching its legality, propriety and correctness. Crl.R.P.No.270 of 2001 - C 2 2. I have heard the learned counsel for the revision petitioner/accused and also the learned public prosecutor. 3. Conviction founded against the accused by the learned Magistrate which was upheld in appeal, is impeached by the learned counsel as illegal and unsustainable contending that rebuttal evidence adduced in the case supporting the defence version and disproving the case of the complainant was not considered and appreciated and that had resulted in forming wrong conclusions resulting in manifestation of injustice. Even before the complaint was filed, the accused had issued a notice to the complainant through an advocate that the cheque was collected towards security in blank form with his signature alone and it should be returned. The advocate who issued that notice was also examined as a witness in the case (DW1). The defence need only show that his version is probable in the facts and circumstances involved in the case and he has no onus to establish such version by unimpeachable evidence, submits the counsel, relying on Narayana Menon v. State of Kerala (2006 (3) KLT 404 SC). Whereas the complainant has to prove his case to bring home the guilt imputed against the accused the burden Crl.R.P.No.270 of 2001 - C 3 cast upon the accused to sustain his version presented in defence is of a lesser nature, that he need only show that his version is probable. The accused need not enter into witness box nor examine any witness in support of his defence, contends the counsel. It is submitted that even on the materials available on record, let in by the complainant, he can successfully show that the defence version canvassed by him is probable. He need not and further not expected to disprove the prosecution case, submits the learned counsel. Both the courts below according to the counsel had not appreciated the defence version presented by the accused in the proper perspective in accordance with law, and that, according to the counsel, led to a wrong conviction leading to miscarriage of justice. The revision petitioner/accused had admitted his signature in the cheque and that amounted to execution of that instrument was the view taken by both the courts, which in the given facts of the case where the accused had given a defence version supported by materials, according to the counsel, was of little consequence. The learned counsel relied on the decision of Bindu v. Sreekantan Nair (2007(1) KLT 525) to contend that admission of signature in the Crl.R.P.No.270 of 2001 - C 4 instrument will not in any way affect the right of the accused to show that a blank signed cheque was misutilised by the payee and made evidence in support of his version. Conviction entered against the accused overlooking and discarding the defence version, according to the counsel, is illegal and liable to be set aside. The learned counsel also made a plea for interfering with the sentence if for any reason this court upholds the conviction as sustainable submitting that sentence imposed against the accused is excessive and unreasonable and warrants modification of the prison term awarded. 4. The scope and ambit of exercise by revisional authority is to set right and correct the infirmity and illegality procedural and otherwise in the orders of the inferior courts. But every infirmity is not liable to be corrected but only such of them which is of such a nature amounting to injustice. Supervisory jurisdiction conferred by revision to correct and set right the mistakes of the inferior courts has to be exercised within the parameters permitted by law and in such exercise reappreciation of the evidence is permissible only in a case where it is brought home that the finding entered by the inferior courts is so Crl.R.P.No.270 of 2001 - C 5 perverse and not in a case where another view different from that court on the materials is also possible. Both the courts below, trial court as well as appellate court, have found no merit in the defence projected by the accused and in that circumstance, unless the revisional authority is satisfied that finding is perverse on the materials produced even if a different view is permissible , it will be reluctant to interfere with the conclusion formed by the inferior courts. 5. Perusing the records of the case, it is noticed that the accused had issued a notice which is produced as Ext.D1, through an advocate who was also examined as DW1 to advance a case that a cheque in blank form was collected from him by the complainant as a security toward a loan transaction for a lesser sum than what is stated in Ext.P1 cheque. Ext.P1 cheque is drawn for a sum of Rs.35,000/- whereas the case of the accused was that the loan transaction was only for a sum of Rs.10,000/- for which the cheque with the signature in blank form was given as security. He had issued the notice even before the complaint was filed by the complainant and thus, before the date of issue of the notice of intimating dishonour of the instrument by the Crl.R.P.No.270 of 2001 - C 6 complainant, is the sheetanchor of the defence canvassed to contend that his defence version was not an afterthought but a material circumstance which should have been accepted as probable. I notice that Ext.D1, copy of the notice issued by the accused to the complainant bears the date 7.7.92, and Ext.P7, the notice issued by the complainant intimating dishonour of the cheque and demanding the sum under the instrument to the accused was dated 8.7.92. Ext.P1 cheque was dishonoured on presentation earlier to the issue of the advocate notice by the accused, for the reason of insufficiency of funds in the account maintained by the accused. Further more, it is also seen from Ext.D2, the acknowledgment card produced by the accused, that he had issued the original of Ext.D1 notice by registered post only on 10.7.92. The endorsement in that acknowledgment card clearly demonstrate that the original notice was not issued on 7.7.92 the date noted in Ext.D1, but three days later. That circumstance leads to a strong inference that the accused had issued the notice through an advocate only after knowing of dishonour of the cheque on account of insufficiency of funds in his account and indisputably after the complainant had issued a Crl.R.P.No.270 of 2001 - C 7 statutory notice on such dishonour. Ext.P2 dishonour memo and Ext.P3 extract of the account of the accused proved by PW1, manager of the bank where the accused maintained his account, leave no room for any doubt that the accused did not have sufficient funds to honour Ext.P1 instrument and as such the instrument on presentation was dishonoured. So, issue of the advocate notice by the accused after such dishonour showing a predate i.e., 3 days before it was actually sent to the complainant, on the face of it does not have any merit and in no way discredit the prosecution case advanced by the complainant. Strangely enough, the accused, the most competent person to speak on the defence version had not mounted to witness box and offered an opportunity to the other side to test the veracity of his defence by way of cross examination, and that too, when his defence version was repudiated, by PW2, the complainant, in his evidence. A version canvassed by the accused by way of defence, which on the face of it is shown to be doubtful and untrustworthy cannot be of any assistance to him to challenge the merit of the prosecution or discredit the case of the complainant. The decisions relied by the learned counsel for the Crl.R.P.No.270 of 2001 - C 8 revision petitioner/accused have no application to the facts and circumstances involved in the present case where it is seen that the defence canvassed by the accused was totally unworthy of any merit. No further dilation on the value of evidence let in by the accused with reference to the decisions cited by the learned counsel for the revision petitioner in the given facts involved in the case and the discussions made above is warranted, and I refrain from doing so. The defence projected by the accused was meritless and rightly spurned by the learned Magistrate and also the appellate court. Conviction of the accused for the offence under Section 138 of the N.I.Act in the proved facts and circumstances of the case is unassailable. 6. Now coming to the question whether any modification of the sentence is called for, at the outset, it has to be pointed out that the view taken by the appellate court that no default term can be imposed for non-payment of compensation ordered under Section 357(3) of the Code of Criminal Procedure is not correct. It is within the competence of the court to award default term of imprisonment when compensation is awarded under the above provision which otherwise would be rendered ineffective Crl.R.P.No.270 of 2001 - C 9 and meaningless. If compensation is realisable only by recourse to the procedure under Section 421 Cr.P.C., as if it were a fine and as such covered by Section 431 Cr.P.C., enabling its recovery under Section 421 of the Code, it is needless to point out that no benefit will accrue to the complainant in the near future since he would have to await the outcome of the distraint steps proceeded against the accused which, normally, would take its own time for culmination. On the other hand, when a default term is imposed for non-payment of the compensation, the complainant would be able to reap the fruits of the successful prosecution as the offender will be compelled to pay the compensation to avoid his incarceration in prison. It is only in the interest of justice that the offender convicted of an offence under Section 138 of the N.I.Act and mulcted with the liability to pay compensation be directed to undergo default term of imprisonment, if such compensation is not paid within the time fixed by the court. 7. Now coming to the sentence and whether it requires any modification, it is to be noted that the dishonour of cheque, which is quite often in commercial transactions, happen not on account of the guilty intention of the maker while drawing the Crl.R.P.No.270 of 2001 - C 10 instrument, but due to subsequent events rendering his account with insufficient funds to honour the instrument on presentation. That may be the reason why the statute directs giving of an opportunity to the maker by way of a notice despite dishonour of the instrument to pay the sum within the statutory period to avoid the prosecution. Having regard to the nature of the offence and the circumstances involved in a commercial transaction whereby cheques are issued towards payment, which some times get dishonoured for reasons beyond the control of the drawer, it is only just and reasonable to hold that offender convicted of the offence under Section 138 of the N.I.Act need not be incarcerated in prison for a term as part of the punishment for such offence, except in a case involving exceptional circumstances justifying such punishment. I do not find any exceptional circumstance in the present case warranting imprisonment of the accused for a term. Sentence imposed against the accused is modified, directing him to undergo imprisonment till the rising of the court and to pay compensation of Rs.50,000/- to the complainant under Section 357(3) of the Code of Criminal Procedure within two months from the date of Crl.R.P.No.270 of 2001 - C 11 this order. In default of payment of compensation as fixed above, the accused shall undergo imprisonment for a term of four months. Compensation, if realised, shall be paid to the complainant. The accused shall appear and his sureties shall produce him on 4.5.2009 before the Judicial First Class Magistrate Court, Thiruvalla, who shall execute the sentence as directed above. The Revision is partly allowed. S.S.SATHEESACHANDRAN, JUDGE. bkn/srd