IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 3813 of 2007() ------------------------------ CRA.258/2006 of ADDL.SESSIONS COURT-III, KOZHIKODE ST.1088/2005 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE(MARAD CASES), KOZIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.PUSHPANGADAN, S/O. AYYAPPAN, AGED 53 YEARS, PACHAT HOUSE, KALOOR ROAD, MANKAVU P.O., KOZHIKODE-7. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. M.P.MOIDEEN KOYA, S/O. MUHAMMED KOYA, 'ROSE VILLA', POST ARTS COLLEGE, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 SRI.P.V.KUNHIKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON ON 12/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3813 of 2007 -------------------------------------- Dated this the 12th day of August, 2009. ORDER Heard both sides. 2. This revision is in challenge of judgment of learned III Additional Sessions Judge, Kozhikode in Crl.Appeal No.258 of 2006 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.1, petitioner borrowed Rs.5,40,000/- from him on 23.3.2005 and the same day issued Ext.P1, cheque dated 23.3.2005 for repayment of that amount. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Service of notice on petitioner intimating dishonour and demanding payment of the amount are proved by Exts.P3 and P4 series. Respondent No.1 gave evidence as PW1 and spoke to his case. According to the petitioner, he had neither any transaction with respondent No.1 nor issued cheque to him. Instead, he had transaction with his friend, Majeed and given signed blank cheque to him. Respondent No.1 is a friend of the said Majeed and stealthily obtained signed blank cheque and misused it. Petitioner examined DW1, manager of the bank in which respondent No.1 has an NRI account and proved Ext.D1, ledger extract of that account. Courts below found in favour of due execution of the cheque. It is contended by learned counsel that finding of the courts below is Crl.R.P.No.3813/2007 2 erroneous. According to the learned counsel there is no acceptable or reliable evidence regarding alleged execution of the cheque and as such the question of application of presumption under Section 139 of the Act did not arise. Further contention is that at any rate that presumption stands rebutted by the circumstances arising in the evidence of respondent No.1. Learned counsel has placed reliance on the decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya Hegde [2008 (1) KLT 425] and of this Court in Bhaskaran Nair C. v. Mohanan B [2009 (2) KHC 1021] and Gopan v. Tonny Varghese [2008 (1) KLT 257]. In response it is contended by learned counsel for respondent No.1 that there is sufficient evidence regarding execution of the cheque and hence, respondent No.1 is entitled to rely on the presumption under Section 139 of the Act. It is further contended that de horse the presumption which respondent No.1 is entitled to rely, there is evidence to show that cheque was issued for the discharge of a legally enforceable debt/liability. 3. Before going into the facts of the case and evidence let in by the parties, I shall refer to the decisions relied on. Supreme Court in Krishna Janardhan Bhat v. Dattatraya Hegde referred supra held that existence of a legally recoverable debt is not a matter of presumption. It was further held that an accused for discharging the burden of proof need not adduce direct evidence and could rely on circumstances brought out in evidence. This Court in Bhaskan Nair C. v. Mohanan B. referred supra while considering the Crl.R.P.No.3813/2007 3 appeal from a judgment of acquittal in a prosecution under Section 138 of the Act held that when execution of the cheque is denied burden is on the complainant to prove that the instrument was duly executed by the maker and that presumption under Section 139 of the Act would arise only when due execution of the cheque is established. So far as presumption under Section 139 of the Act is concerned, it is held that a presumption is not in itself evidence, but it only enables the party in whose favour it exists to show that he has a prima facie case. In Gopan v. Tonny Varghese referred supra it has been held that mere fact of admission or proof of signature in the instrument does not amount to admission or proof of due execution of the cheque. 4. No doubt, it has been repeatedly held by various authoritative pronouncements that so far as due execution of a document is concerned, mere admission or proof of signature in the document did not tantamount to admission or proof of due execution of the document. When execution of document is denied it is the person in whose favour it is executed who has to prove its due execution by appropriate evidence. At the same time it has also been held that admission or proof of signature in the instrument went a long way in proving due execution of the document. That is because no prudent and reasonable man normally is expected to give signed blank papers or signed blank cheques to another. In this case respondent No.1 has given evidence as PW1 that petitioner borrowed Rs.5,40,000/- from him on 23.3.2005 and issued the cheque for repayment of the amount, on the same day. He would explain that himself and petitioner had been friends and on the previous day at about 7 p.m. Crl.R.P.No.3813/2007 4 petitioner requested him for a loan of Rupees six lakhs over telephone. Next day, he found that he had only Rs.5,40,000/- in his NRI account with the bank of DW1, withdrew Rs.5,40,000/- from that account and lent the same to the petitioner at his house where petitioner issued the cheque for repayment of that amount. He admitted that Majeed referred to by the petitioner in his statement under Section 313 of the Code of Criminal Procedure is a friend of his but denied that he got Ext.P1 in signed blank form from Majeed. 5. Petitioner examined DW1, manager of the bank in which respondent No.1 has an NRI Account. DW1 proved Ext.D1, the ledger extract of the account of respondent No.1. It is seen from Ext.D1 that on 23.3.2005 there was a withdrawal of Rs.5,40,000/- from the account of respondent No.1. There again, petitioner has a contention that it is now shown that said amount was withdrawn by respondent No.1. Petitioner filed C.M.P.No.1400 of 2006 to direct the manager of the bank of respondent No.1 to cause production of the cheque (as per which the sum of Rs.5,40,000/- was withdrawn allegedly by respondent No.1) and ledger extract. DW1 produced ledger extract which is marked as Ext.D1 and gave evidence. He stated that the cheque on which the sum of Rs.5,40,000/- was withdrawn on 23.3.2005 is in the bank but that has not been produced. A further petition that petitioner filed in the trial court is C.M.P.No.1248 of 2006 whereby he wanted to respondent No.1 to produce his passbook as well as passport . Attempt of the petitioner was to disprove the fact of respondent No.1 withdrawing Rs.5,40,000/.- from his account on 23.3.2005 and, to show that as on 23.3.2005 respondent No.1 was not even in India as he Crl.R.P.No.3813/2007 5 was abroad. Learned counsel contends that respondent No.1 has not produced his passport and hence adverse inference can be drawn against him. I find that learned magistrate allowed C.M.P.No.1248 of 2006 and respondent No.1 was directed to produce 'documents' or file affidavit. Case was posted to 25.2.2006. The endorsement on C.M.P.No.1248 of 2006 on that day is that counsel for respondent No.1 produced 'documents', it was verified by counsel for petitioner and returned to respondent No.1. Therefore, it is idle to contend at this stage that documents were not produced by respondent No.1. Assuming that the documents were not produced as requested by petitioner, he ought to have pursued the demand and pointed out to the trial court that the documents were not produced. Nothing of that sort is seen done. Therefore, at this late stage it is not available to the petitioner to contend that documents are not produced or have been suppressed by respondent No.1. 6. So far as non-production of cheque referred to in Ext.D1 by DW1 is concerned, it has to be remembered that Ext.D1 is not a document that was pressed into service by respondent No.1 to prove his case. At the stage of defence evidence petitioner wanted to disprove the claim of respondent No.1 that the latter withdrew Rs.5,40,000/- from his account and lent the same to the petitioner. It is accordingly that the documents were called for as per C.M.P.No.1400 of 2006. It is true that DW1 stated that relevant cheque is in the custody of his bank but for some reason or other that document has not been produced. Non-production of the cheque was not due to any fault of respondent No.1. Petitioner ought to have taken steps based on the deposition of DW1 that Crl.R.P.No.3813/2007 6 the said cheque is available in the bank and summoned it. 7. Respondent No.1 has given evidence that petitioner borrowed Rs.5,40,000/- from him on 23.3.2005 and issued a cheque on the same day. Learned counsel for petitioner brought to my attention statement in the chief affidavit of respondent No.1 that it was in respect of a pre-existing liability that cheque was issued. I have gone through the chief affidavit of respondent No.1 and I am unable to discern anything in that way. What is stated is only that petitioner borrowed the amount and issued a cheque. When cross examining it was suggested to respondent No.1 that he had not taken any document at the time of payment of the amount. He stated that no document was taken but at the next breath stated that petitioner had issued the cheque. That being the situation I am unable to find any discrepancy in the evidence of respondent No.1 from the averments in the complaint or the statement in chief affidavit. It would appear from Ext.P1, cheque the ink used is not the same. But it is the case of respondent No.1 that the cheque was brought filled up and signed by the petitioner in his presence. Mere fact that the writings in the cheque are in different ink does not mean that it is fabricated in the manner contended by the petitioner. 8. Petitioner ofcourse contended that he had given the cheque in question along with few other cheques to Majeed and respondent No.1 got it stealthily from Majeed. On that contention what is available is only the suggestion put to respondent No.1 which the latter denied. But ofcourse respondent No.1 admitted that Majeed is his friend. From that, I am afraid, Crl.R.P.No.3813/2007 7 no inference is possible in the manner suggested by petitioner. I do not forget that it is not the obligation of petitioner to go into the box and give evidence and no court can comment upon failure of petitioner to give evidence. But, non- examination of Majeed on the side of petitioner looms large. No explanation is given for non-examination of Majeed. The further fact I have to bear-in-mind is that the failure of petitioner to reply to the statutory notice served on him. True, being an accused in a criminal case he can remain silent and that does not prove the case of respondent No.1. It is pertinent to note that inspite of petitioner claiming that he had no association with respondent No.1, not borrowed any amount nor issued the cheque and that it was fabricated at the instance of Majeed, petitioner did not respond to the statutory notice. In a situation of this nature, prudence required petitioner to reply to the person setting up the cheque and demanding payment of the amount and explain the circumstances under which the cheque happened to be in his custody. Petitioner has no explanation for not replying to the statutory notice. These are circumstances fortifying the contention of respondent No.1 regarding the transaction. 9. As to the transaction leading to execution of the cheque there is evidence of respondent No.1 as PW1. I have already referred to the relevant circumstances which corroborated evidence of PW1 regarding the transaction and execution of the cheque. There is no case that respondent No.1 is financially incapable of raising Rs.5,40,000/-. Even according to the petitioner, respondent No.1 was working abroad and as Ext.D1 and evidence of DW1 Crl.R.P.No.3813/2007 8 show, he was maintaining an NRI account during the relevant time. It is also seen from Ext.D1 that he had the capacity to raise Rs.5,40,000/- as is disclosed from Ext.D1 that on 23.3.2005 that amount was withdrawn from his account. 10. It is then contended by learned counsel that petitioner may be given an opportunity to summon the cheque as per which the sum of Rs.5,40,000/- was withdrawn from the account of respondent No.1 on 23.3.2005. Learned counsel asserts that if that cheque is produced it would be seen that the amount was not drawn by respondent No.1. I stated that no attempt was made to pursue the demand for production of cheque referred to in C.M.P.No.1400 of 2006 even after DW1 stated that the cheque is available in his bank. I also notice that when respondent No.1 was in the box he was not questioned with reference to the cheque in question as to whether he had personally withdrawn the amount or that amount was withdrawn by somebody else on his behalf. In that situation I am not inclined to think that a remand of the case is called for. 11. I have referred to the circumstances emerging in the case. Courts below considered the evidence and circumstances and found in favour of execution of the cheque. Courts below found that there is nothing to disbelieve the evidence of respondent No.1 That finding is being based on an appreciation of the evidence adduced by both sides. Revisional court is not required to re- appreciate the evidence and and substitute the findings of the trial court with a different finding. Function of the revisional court is only to examine the records and find whether there is any illegality, irregularity or impropriety in the proceeding or order of the subordinate criminal courts. That function has been Crl.R.P.No.3813/2007 9 exercised by me and for that limited purpose I have referred to the evidence on record. I find no illegality, irregularity or impropriety in the findings of the courts below requiring interference by this Court in revision. As such no interference is required with regard to the finding regarding execution of the cheque, failure of petitioner to rebut the presumption under Section 139 of the Act and his consequent conviction for offence punishable under Section 138 of the Act. 12. Learned magistrate sentenced petitioner to undergo simple imprisonment for nine months. There was a direction for payment of Rs.5,40,000/- as compensation and in default of payment to undergo simple imprisonment for three months. Appellate court while modifying substantive sentence as simple imprisonment for three months fixed compensation payable to respondent No.1 as Rs.5,80,000/- and provided default sentence of imprisonment for three months. Learned counsel for petitioner contends that sentence even as modified by the appellate court is excessive. The further contention is that there is no justification in enhancing compensation payable to respondent No.1 from Rs.5,40,000/- to Rs.5,80,000/-. At any rate it is submitted by learned counsel that petitioner may be granted ten (10) months' time to deposit compensation. Learned counsel stated that on account of financial difficulties petitioner is unable to raise the amount immediately. 13. Considering the nature of offence and so far as it is not shown that no moral turpitude is involved in the matter I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. 14. So far as re-fixation of the compensation by the appellate court is Crl.R.P.No.3813/2007 10 concerned, that court was surely competent to award appropriate amount as compensation in view of Section 357(4) of the Code. That provision enables the appellate or revisional court to award compensation. When the appellate or revisional court is empowered to award compensation that takes in the power to award appropriate amount as compensation if necessary by re-fixing compensation, for, compensation means 'just equivalent' and the amount awarded should compensate the loss caused to the victim. In this case the cheque amount is Rs.5,40,000/- and is dated 23.3.2005. There is no case or evidence regarding any payment in partial discharge of that liability. Considering these circumstances I am not inclined to think that compensation of Rs.5,80,000/- is excessive. There is no reason to interfere with the direction for payment of compensation. At the same time considering the circumstances stated by learned counsel and the amount involved I am inclined to grant time to the petitioner till 19.04.2010 to deposit compensation in the trial court as ordered by the appellate court. In case of non-payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted time till 19.04.2010 to deposit compensation in the trial court failing which petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of the Crl.R.P.No.3813/2007 11 direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the above said time. Petitioner shall appear in the trial court on 20.04.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks