IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 Crl.Rev.Pet.No. 3963 of 2008() ------------------------------------ CRA.359/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.47/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, CHALAKUDY .................... PETITIONER(S):APPELLANT/ACCUSED ---------------------------------------------- REENA VARGHESE, W/O.VARGHESE, 38, MENACHERY HOUSE, KIZHUKKUMURY VILLAGE CHIRANGARA DESOM, CHALAKUDY, THRISSUR. BY ADVS. SRI.M.H.HANIL KUMAR SRI.JOBY JOSEPH (THRISSUR) RESPONDENT(S): COMPLAINANT & STATE ------------------------------------------------- 1. DEVASSY, S/O.VAREED, THEKKINIAN HOUSE, MURINGOOR, THEKKUMURY VILLAGE KORATTY DESOM PO., THRISSUR. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADVS. SRI.K.A.SHAMSUDEEN SRI.K.I.ABDUL RASHEED R2 BY PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.3963 of 2008 ------------------------------- Dated this the 7th day of January, 2011. O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging her conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the complainant is that, the complainant as well as the accused are family friends and the husband of the accused was a business man by profession and when he was suffering from some sort of ailment, the accused was in charge of the business of her husband and at that time, the accused borrowed a sum of Rs.1 lakh from the complainant for business purpose. According to the complainant, when the said amount was demanded back, the accused issued a cheque dated 4.7.2002 for an amount of Rs.1 lakh, which when presented for encashment dishonoured for want of sufficient funds in the 2 Crl.R.P.No.3963 of 2008 account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court- Chalakudy, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.47/03. During the course of the trial PW1 was examined from the side of the complainant and Exts.P1 to P7 were produced and marked. From the side of the defence, the accused herself was mounted to the box and gave evidence as Dw.1 and produced Exts.D1 to D3 documents. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/ accused for the purpose of discharging her debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/ revision petitioner and consequently found that the accused is 3 Crl.R.P.No.3963 of 2008 guilty and thus convicted her u/s.138 of Negotiable Instruments Act. On conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 6 months and to pay a compensation of Rs.1 lakh to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. 3. Challenging the above conviction and sentence the accused preferred an appeal and by judgment dated 3.9.2008 in Crl.A.359/07 the court of the Additional Sessions Judge (Fast Track Court II) (Ad hoc), Thrissur, allowed the appeal only in part. Accordingly, while confirming the conviction, the sentence imposed by the trial court is modified and the revision petitioner is sentenced to undergo simple imprisonment for one day, ie., till the rising of the court and also directed her to pay compensation of Rs.1 lakh to the complainant and the default sentence is fixed as 9 months simple imprisonment. It is the above conviction and sentence challenged in this revision petition. 4. I have heard Sri.M.H.Hanil Kumar, the counsel 4 Crl.R.P.No.3963 of 2008 appearing for the revision petitioner and also Sri.Abdul Rasheed, the learned counsel appearing for the respondents. 5. The learned counsel for the revision petitioner vehemently submitted that, the complainant has miserably failed to establish the execution and issuance of the cheque in question and also passing of the consideration. Thus according to the learned counsel, the trial court as well as the appellate court are wrong in convicting the revision petitioner for the offence punishable u/s.138 of NI Act. It is also the submission of the learned counsel that, the learned Magistrate committed default in putting proper questions to the accused, when she was examined u/s.313 of Cr.P.C. Thus, according to the learned counsel for the revision petitioner, the findings of the courts below against the revision petitioner are liable to be set aside and the revision petitioner is entitled to get a clear acquittal. 6. On the other hand, the learned counsel for the respondents submitted that, both the courts below have 5 Crl.R.P.No.3963 of 2008 concurrently found that the accused has committed the offence punishable u/s.138 of NI Act. It is also the submission of the learned counsel for the revision petitioner that, though the complainant was available for cross examination no effective questions were put to him and as such the evidence of the complainant remained as unchallenged. It is also the submission of the learned counsel that, the complainant by producing Ext.P1 cheque from the possession of the revision petitioner, established the case against the revision petitioner in terms of the allegation contained in the complaint and the courts below have approved the contention and claim of the revision petitioner and therefore no interference is warranted. 7. I have carefully considered the arguments advanced by the counsels on both sides and I have perused the judgments of the courts below and the evidence on record. 8. Admittedly, the complainant is the family friend of the accused. It is the specific case of the complainant that when the husband of the accused/revision petitioner was suffering from 6 Crl.R.P.No.3963 of 2008 ailment, the accused undertook the charge of the business of her husband and towards the business purpose, the accused borrowed a sum of Rs.1 lakh from the complainant and towards the discharge of the said liability the accused issued the cheque in question. In support of the above claim, the complainant has produced Ext.P1 cheque, which contained the signature of the accused. After considering all the contentions and the evidence on record, the trial court as well as the appellate court have found that the cheque in question was issued by the accused towards the discharge of a legally enforceable debt that due to the complainant. In this case as indicated above, the complainant has adduced oral evidence and he has also produced the cheque in question from his possession but there is no convincing explanation from the side of the defence as to how the cheque in question reached in the hands of the complainant. A vague explanation is not sufficient to discharge the burden of rebutting the presumption. It is for the accused to establish atleast a probable case as to how Ext.P1 cheque 7 Crl.R.P.No.3963 of 2008 reached in the possession of the complainant. In this juncture, it is relevant to note that though PW1 was available for cross examination, no effective attempt was made to challenge the version of PW1 and to discredit his testimony. Therefore, according to me, the revision petitioner has miserably failed to rebut the presumption which is available in favour of the accused u/s.139 of NI Act and I find no reason to interfere with the concurrent findings of the courts below. The other point raised by the counsel is that the accused has not properly questioned u/s.313 of Cr.P.C., the said submission has no force at all since the revision petitioner has miserably failed to prove that any prejudice has caused to her for the alleged failure on the part of the trial court questioning u/s.313 of Cr.P.C. In the light of the facts and circumstances involved in the case, I find no merit in this revision petition and accordingly the same is dismissed. Regarding the sentence, the learned counsel for the revision petitioner submitted that, the default sentence fixed by 8 Crl.R.P.No.3963 of 2008 the appellate court is highly arbitrary, illegal and exorbitant. Having regard to the facts and circumstances involved in the case, I am of the view that, 6 months simple imprisonment as default sentence is sufficient to meet the ends of justice and accordingly, the default sentence fixed by the appellate court is modified and reduced to 6 months simple imprisonment. The revision petitioner is granted one month time from today to pay the compensation amount fixed by the appellate court and it is made clear that the revised default sentence will be attracted only in case of any failure on the part of the revision petitioner to pay the compensation amount within one month from today. Accordingly, the revision petitioner is directed to appear before the trial court on or before 7.2.2011 to receive the sentence of imprisonment fixed by the appellate court and to pay the compensation amount. If there is any failure on the part of the revision petitioner in appearing before the trial court on or before 7.2.2011 to receive the sentence and to pay the compensation amount, the trial court is free to take coercive steps to 9 Crl.R.P.No.3963 of 2008 secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the petitioner shall be deferred till 7.2.2011. V.K.MOHANAN, Judge. ami/