IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH DAY OF DECEMBER 2011/15TH AGRAHAYANA 1933 CRRP.No. 2887 of 2011 ( ) ---------------------------------- (AGAINST THE JUDGMENT IN CRA.281/2010 OF THE COURT OF SESSION, KASARAGOD DTD: 08.11.2011) (CC.84/2010 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, (ADDITIONAL MUNSIFF), KASARAGOD DTD: 20.08.2010) ......................................... REVISION PETITIONER/APPELLANT/ACCUSED : 1. S.JAGANATHA RAI, AGED 55 YEARS S/O.BALAKRISHNA RAI, SABRAKAJE HOUSE, NETTANIGE POST, VIA MULLERIA KASARAGOD TALUK. BY ADVS.SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH SMT.P.M.SHIJI RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE : 1. ABDULLA, AGED 30 YEARS, S/O.MOHAMMED, GOLIKATTA HOUSE, BELLOOR POST, VIA MULLERIA KASARAGOD TALUK, PIN – 671 543. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA KOCHI - 31. R2 BY SRI.T.R.RAJES, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2887 of 2011 ----------------------------------------------- Dated this the 6th day of December, 2011 O R D E R Challenge in the revision is by the accused in a cheque case, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short ‘the Act’} concurrently by two courts below. Sentence imposed against the accused is simple imprisonment for one month with direction to pay compensation for the cheque amount, a sum of Rs.2,00,000/- to the complainant with default term of simple imprisonment for two months more. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the accused reiterated before me the challenges canvassed before the two courts below to resist the prosecution based on the dishonoured cheque, which admittedly arose from an account Crl.R.P.No.2887 of 2011 :: 2 :: maintained by him. Disputing the case of the complainant that the cheque had been issued towards discharge of a liability, he contended that he had no transaction with the complainant and the cheque issued as a security in blank form to another, one Shaji, after the entries thereof being filled up, and the instrument materially altered, had been presented for encashment through the complainant, a stranger, with whom he had no dealings at all, to prosecute him for the offence under Section 138 of the Act. Whatever be the defences so set up by the petitioner/accused to resist the prosecution, it has to be noted that the complainant had issued him a notice as mandated by the statute on dishonour of the instrument. That notice remained unresponded with any reply after acknowledgement. The denial of transaction in Crl.R.P.No.2887 of 2011 :: 3 :: relation to the cheque set up as a defence by the accused, necessarily, has to be appreciated in the backdrop of that after receiving the notice, there was no response from him and the defence, as indicated, was canvassed only belatedly at the stage of trial. True, default or failure to send a reply after receiving a notice intimating dishonour of the cheque issued by the drawer, that by itself would not deter or prevent him from taking whatever defences available to him to resist the prosecution. However, when an offender - drawer of an instrument, on its dishonour, is prosecuted for the offence under Section 138 of the Act, it is worthwhile to take note that the offence so far as the drawer is complete once the instrument drawn by him towards the discharge of a debt whole or in part, is dishonoured due to insufficiency of funds in Crl.R.P.No.2887 of 2011 :: 4 :: his account or exceeds the arrangement entered with the bank. To enable the complainant - the payee or the holder in due course - mandatory requirement covered by the statute as to issue of notice intimating dishonour and, filing of the complaint within the time prescribed, is necessary, is not a circumstance enuring in favour of the drawer of the instrument on bouncing of the cheque to absolve him totally of the offence committed which has already become complete. But his prosecution for such offence, no doubt, is permissible only on satisfaction of the essential ingredients as indicated, enabling the court to take cognizance on a complaint by the payee or the holder in due course. So much so, the plea that the cheque was issued in blank form with signature alone and the transaction over the cheque was with another canvassed by Crl.R.P.No.2887 of 2011 :: 5 :: the accused in the present case can be given some merit only where it is shown that the defence so pleaded is probable. When a defence is set up by the accused the onus on him to establish the probability such defence is not as strict as that of the prosecution. He has to satisfy the test of preponderance of probabilities showing that the defence advanced by him is probable in the facts of the case. Other than setting forth some vague suggestions during the cross-examination of the complainant nothing more was tendered in the case by the accused in support of his defence. In such circumstances, the finding entered by the trial magistrate, who recorded the evidence of the complainant, accepting his case as reliable, trustworthy and convincing, which was affirmed by the Sessions Judge after re-appreciation of the evidence is not liable to be interfered with Crl.R.P.No.2887 of 2011 :: 6 :: in exercise of revisional jurisdiction, especially, where nothing has been shown that such finding suffers from any infirmity whatsoever. So much so, conviction entered against the accused concurrently by the courts below for the offence under Section 138 of the Act is not liable to be disturbed. 3. At this stage, the learned counsel for the accused urged for modification of the sentence of substantive term of imprisonment imposed against the accused with a request for grant of some more time to pay the compensation and thus, to avoid the default term of imprisonment. I do not find any exceptional circumstances in the case justifying imposition of a harsh punishment directing incarceration of the petitioner for the term fixed. Sentence imposing substantive term of imprisonment Crl.R.P.No.2887 of 2011 :: 7 :: against the accused calls for modification, since the liability arising under a dishonoured cheque is primarily a civil liability, though it has been made as an offence. Sentence imposed against the accused can be modified and reduced to imprisonment till the rising of the court, retaining the compensation awarded with the default term of imprisonment. Similarly, a short time, as indicated hereunder, can be provided for payment of such compensation. 4. Affirming the conviction and sentence, the petitioner/accused is directed to appear before the magistrate on 15.02.2012, to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance, to enable him to pay the Crl.R.P.No.2887 of 2011 :: 8 :: compensation within such period. In default of his appearance and non-payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.