IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 2438 of 2010() ------------------------------ CRA.195/2009 of ADDL.SESSIONS (FAST TRACK II) MANJERI ST.1341/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------------- M.MUJEEB RAHMAN, S/O.DR.USMAN, AGED 47 YEARS, RESIDING AT MOORKAN HOUSE, SUBAIDA COTTAGE, CHERUVATHKUNNU, P.O.NILAMBUR, MALAPPURAM. BY ADVS. SRI.K.SHIBILI NAHA, SMT.A.LOWSY. RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. SUNNY JOSEPH, S/O.JOSEPH, AGED 52 YEARS, RESIDING AT VAKANAMPADATHIL HOUSE, KOVILAKATHUMURI, NILAMBUR POST, MALAPPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2438 of 2010 ------------------------------- Dated this the 12th day of August, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused and the complainant know each other as they are friends and the accused borrowed a sum of Rs.1,50,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 16.5.2007 for an amount of Rs.1,50,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the 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 Crl. R.P.No.2438 of 2010 2 complainant approached the Judl. First Class Magistrate Court- Nilambur, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1341/07. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4 were marked. From the side of the defence DW1 was examined and no documentary evidence was adduced. 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 his 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 guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 2 months and to pay a sum of Rs.1,50,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and the default sentence was fixed as 1 month simple Crl. R.P.No.2438 of 2010 3 imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused, by judgment dated 30.6.2010 in Crl.A.195/09, the Court of Sessions Judge, Manjeri, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act and reducing the sentence to simple imprisonment till rising of the court and to pay a fine of Rs.1,50,000/-, which shall be paid to the complainant, on realisation and there was also a direction that the complainant shall appear before the trial court on 30.7.2010 and the default sentence was fixed as 1 month simple imprisonment. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner vehemently argued that the complainant has miserably failed to establish a prima facie case and as such there is no burden on Crl. R.P.No.2438 of 2010 4 the revision petitioner to rebut the presumptions. The revision petitioner though denied the execution of signature and also filed petition to sent the cheque in question for expert examination, he had not pursued the attempt and as such the contention of the defence is not substantiated. When PW1 was examined, he had deposed in terms of the complaint and he had produced the cheque in question, which was in his possession, signed by the accused. The specific case of the complainant is to the effect that, the complainant as well as the accused are friends and knowing each other and out of that relationship the accused demanded loan and it was given to him by the complainant. In support of the above version, he had produced Ext.P1 cheque from his possession. The accused has no convincing explanation as to how the cheque in question reached in the hands of the complainant. The learned counsel for the revision petitioner very much argued that the cheque in question related to an account, which closed during the year 2001 and during the year 1998-99, he had entrusted certain cheque leaves with one Thomas and the cheque in question is Crl. R.P.No.2438 of 2010 5 one among those cheques. Apart from the mere version or explanation on the part of the accused, no material was produced and no evidence adduced in support of the above version. When the complainant produced the signed cheque from his possession and adduced evidence in support of the complaint, certainly the complainant is entitled to get the presumptions u/s.139 of Negotiable Instruments Act and it is for the accused to discharge his burden to rebut the presumptions. The trial court as well as the lower appellate court has specifically found that, the accused issued the cheque in question towards the discharge of the liability due to the complainant and also found that the revision petitioner has miserably failed to rebut the presumptions. The above findings of the courts below are fully supported by the materials and evidences referred to in the judgments of the courts below. Therefore, I find no reason to interfere with the findings and the conviction recorded by the courts below. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the learned counsel for Crl. R.P.No.2438 of 2010 6 the revision petitioner submitted that some breathing time may be granted to pay the fine. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to other facts and circumstances involved in the case. In the present case, the cheque in question dated 16.5.2007 and as per the findings of the courts below, which approved by this court, the said amount is belonged to the complainant but the same was with the revision petitioner for the last 3 years. It is also relevant to note that, though the trial court had awarded the sentence of imprisonment for 2 months, the lower appellate court reduced the same to till the rising of the court and instead of compensation, directed the revision petitioner to pay a fine of Rs.1,50,000/- and the default sentence is fixed as 1 month simple imprisonment. It is true that on realisation of the fine amount, the same was ordered to pay to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 7. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) Crl. R.P.No.2438 of 2010 7 has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Having regard to the above mentioned facts and circumstances and to the settled legal position, I am of the view that while granting some time to the revision petitioner to deposit the fine amount, the amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment as modified and fixed by the lower appellate court is confirmed. The revision petitioner is further directed to pay a fine of Rs.1,63,000/-, within 3 months from today and in case of default in depositing the fine amount, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 12.11.2010 to receive the sentence of imprisonment and to pay the fine amount as directed by this court. On realisation of the fine Crl. R.P.No.2438 of 2010 8 amount, a sum of Rs.1,62,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/