IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 322 of 2001() ----------------------------- CRA.13/1999 of SESSIONS COURT, MANJERI CC.244/1998 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S):/APPELLANT/ACCUSED --------------------- M.K.SAHADEVAN, S/O.DAMODHARA PANICKER, MUNDUPARAMBA, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S):/RESPONDENTS/STATE & COMPLAINANT --------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31. 2. SANKARA NARAYANAN, S/O.THAMI, AMBALI HOUSE, ATHANICKEL, VELLUVAMBRAM, MALAPPURAM DISTRICT. ADV. SRI.M.K.CHANDRA MOHANDAS FOR R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 4/12/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.322 of 2001 -------------------------------------- Dated this the 4th day of December, 2008. ORDER Heard both sides. 2. Following points arise for consideration:- I. Whether revision petitioner issued the cheque in question for the discharge of any legally recoverable debt/liability? II. Whether sentence is excessive? 3. Perused records. 4. Point No.I. According to the second respondent, revision petitioner borrowed Rs.80,000/- from him undertaking to repay the same on demand and on demanding repayment, issued Ext.P1 cheque dated 18.10.1997 for the discharge of that debt/liability, cheque was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment as per notice dated 10.11.1999, served on 25.11.1997, revision petitioner did not pay the amount. Instead, revision petitioner sent reply (Ext.P5) denying the claim of the second respondent. Second respondent gave evidence as PW1 and proved Exts.P1 to P7. Revision petitioner gave evidence as DW1. According to the revision petitioner, as stated in his evidence as DW1, in Ext.P5 and when questioned under Section 313 of the Code of Criminal Procedure, one Crl.R.P.No.322/2001 2 M.K.Chandrasekharan gave a loan of Rs.15,000/- to one Suresh and as insisted by Chandrasekharan, revision petitioner gave two signed blank cheques as security. Chandrasekharan had told him that on Suresh repaying the amount, the signed blank cheques will be returned to him but, that was not done. According to the revision petitioner, the complaint filed by the second respondent is in collusion with the said Chandrasekharan. Counsel for revision petitioner contended that due execution of the cheque is not proved and at any rate, there was no evidence to prove that cheque was issued for discharge of a legally recoverable debt. Even the presumption under Section 139 of the Negotiable Instruments Act (for short, ‘the Act’) is rebutted by the revision petitioner. 5. It is true that presumption envisaged under Section 139 of the Act is rebuttable. In the case on hand second respondent has given evidence as PW1 and testified to the transaction. It is admitted and proved that the second respondent presented Ext.P1 cheque for encashment and later, produced the same in the trial court. As regards the version of the revision petitioner is concerned, I do not forget that he has a consistent case as to how the cheque happened to be in the custody of the second respondent, right from Ext.P5 reply notice itself. That consistency in the contention is not sufficient to discard the evidence given by the second respondent which gets corroboration from Ext.P1 also. M.K.Chandrasekharan referred to by the revision petitioner is none other than his uncle. He did not take steps to examine the said Chandrasekharan or Suresh. Result is that apart from what the revision Crl.R.P.No.322/2001 3 petitioner testified on oath which was challenged in cross-examination, there is no reliable evidence to show any such transaction between Chandrasekharan and Suresh and at any rate, that the cheque in question was handed over to the said Chandrasekharan. It has come in evidence that there was another case against the revision petitioner as S.T.No.3680 of 1998 in the same court, that he paid the amount and that case was disposed of. Though, that by itself is not in any way helpful to the second respondent, that also is a circumstance to be taken into account while appreciating the evidence of revision petitioner as DW1. It is admitted that Ext.P1 contained the signature of the revision petitioner. In such situation the revision petitioner had to prove or probabilise the circumstances under which, according to him, the cheque happened to be in the custody of the second respondent. On going through the evidence I find that revision petitioner was not successful in that attempt. Conviction therefore cannot be interfered. 6. Point No.II. Learned magistrate sentenced him to undergo simple imprisonment for six months. Appeal was dismissed. Considering the nature of offence, amount involved and object of the legislation, I am persuaded to think that simple imprisonment till rising of the court and payment of compensation to the first respondent are sufficient in the ends of justice. Resultantly, this revision petitioner is allowed in part in the following lines:- i. Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. Crl.R.P.No.322/2001 4 ii. Revision petitioner is directed to deposit in the trial court Rs.80,000/- (Rupees Eighty thousand only) for payment to the second respondent as compensation within three months from this day failing which, he shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance of the direction in clause (ii) above if the revision petitioner paid the amount of compensation to the second respondent through his counsel in the trial court and the second respondent filed a statement through his counsel in the trial court acknowledging receipt of compensation within the said period of three months. iv. Revision petitioner shall surrender in the trial court on 12.3.2009 to receive the sentence. v. Bail bond is cancelled. Crl.M.P.No.1394 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.322/2001 5 Thomas P.Joseph, J. Crl.R.P.No.322 of 2001 ORDER 4th December, 2008