IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 1595 of 2010() ------------------------------ CRA.77/2009 of ADDL.SESSIONS COURT (ADHOC- I), KOTTAYAM CC.351/2007 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- P.J.THOMAS, PALAKKOOTTATHIL HOUSE, KOTHALA P.O., KOTTAYAM. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESNTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.C.GEORGE, S/O. GEORGE, AMPAZHATHUMKAL HOUSE, POONJAR P.O., KOTTAYAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1595 of 2010 ------------------------------- Dated this the 21st day of May, 2010. O R D E R The accused in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act, is the revision petitioner. 2. The allegation against the revision petitioner is that, he had borrowed an amount of Rs.60,000/- from the complainant and towards the discharge of the said amount, he issued a cheque for Rs.60,000/-, which when presented for encashment dishonoured and accordingly he committed the offence punishable u/s.138 of Negotiable Instruments Act. On filing the complaint with the above allegation, C.C.No.351/07 was instituted in the Judicial First Class Magistrate Court, Erattupetta and during the course of the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P6. From the side of the defence, no evidence was adduced. The trial court found that the materials produced by the complainant will lead to a presumption u/s.139 of the Negotiable Instruments Act, in favour Crl. R.P.No.1595 of 2010 2 of the complainant and thus found that the complainant has established the case that the cheque in question was issued towards the discharge of the legally enforceable debt due to the complainant. Accordingly, the revision petitioner is convicted u/s.138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for 4 months and to pay a fine of Rs.60,000/- and the default sentence is fixed as 2 months simple imprisonment. Though the revision petitioner preferred Crl.A.no.77/09 before the Sessions Court (Ad hoc-1), Kottayam, the same was allowed only partly by the judgment dated 14.1.2010 by which, while confirming the conviction, the sentence of imprisonment, reduced from 4 months to one day imprisonment and maintained the sentence of fine. It is the above conviction and sentence challenged in this revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. The only contention raised by the accused/revision petitioner is that, he had borrowed a sum of Rs.10,000/- from one Mohanan and towards the security of the said transaction, Crl. R.P.No.1595 of 2010 3 he had entrusted with him a cheque and the same was not returned when the account was settled. According to the defence, it is the said cheque that misused by the complainant for initiating the present prosecution. The trial court as well as the lower appellate court has found that, though the defence had set up such a plea, the same has not been substantiated. 4. In this juncture it is relevant to note that, the complainant has established his case by adducing evidence consists of oral testimony of PW1, the complainant himself and the contemporary documentary evidence. The apex court has time and again held that, mere denial of the transaction or execution of the cheque is not sufficient to discharge the burden of the accused, in rebutting the presumptions available in favour of the complainant u/s.139 of the Negotiable Instruments Act. In the present case as indicated earlier, both the courts below are concurrently found that the complainant is entitled to get presumption u/s.139 of the Negotiable Instruments Act, on the basis of the materials and evidence on record, but the accused/revision petitioner, though he had cited the said Mohanan as a witness, he was not examined and no evidence Crl. R.P.No.1595 of 2010 4 was adduced. Therefore, it can not be said that the accused had discharged his burden. Under the above factual and legal position, the finding arrived on by the trial court as well as the lower appellate court has to be approved and accordingly the conviction recorded in the courts below are confirmed. 5. The learned counsel appearing for the revision petitioner submitted that, a breathing time may be granted to the revision petitioner to deposit the fine amount and to receive the sentence awarded by the lower appellate court. I am of the view that, the said prayer can be considered in favour of the revision petitioner, subject to enhancement of the fine amount. It is beyond dispute that, the cheque in question pertain to the year 2007, wherein the amount is for Rs.60,000/- and now three years are over, therefore while granting time to the revision petitioner to make the deposit, the fine amount can be enhanced to the tune of Rs.65,000/-, which will sufficient to serve the interest of justice, especially in the light of the decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457). In the result, this criminal revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the Crl. R.P.No.1595 of 2010 5 Negotiable Instruments Act as recorded by the courts below. With respect to the sentence, the substantiated sentence of imprisonment awarded by the lower appellate court is confirmed but the sentence of fine is enhanced to the tune of Rs.65,000/- and the default sentence is fixed as 3 months simple imprisonment, instead of 2 months. On realisation of the fine amount, the entire amount shall be paid as compensation to the complainant u/s.357(3) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 30.8.2010, to receive the sentence and to make deposit of the above fine amount. If there is any failure on the part of the revision petitioner, in appearing before the court below as directed above, the trial court is free to take coercive steps for procuring the presence of the revision petitioner and to execute the sentence. The execution of warrant if any pending against the revision petitioner, shall be referred till 30.8.2010. V.K.MOHANAN, Judge. ami/