IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1570 of 2006()
1. B. IMAM ALI, AGED 40 YEARS,
... Petitioner
Vs
1. VIJAYAN NAMBIAR,S/O.LATE GOVIDAN NAMBIAR
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.M.SASINDRAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/11/2008
O R D E R
M.N.KRISHNAN, J
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CRL.R.P. No.1570 OF 2006
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Dated this the 27th day of November 2008
ORDER
This revision petition is preferred against the judgment of the
Addl.Sessions Court-II, Kasargod . It was filed against the conviction and
sentence passed under Section 138 of the Negotiable Instruments Act in
C.C.No.518 of 1998 of the Chief Judicial Magistrate Court, Kasargod. The
complaint was initiated under Section 138 of the Negotiable Instruments
Act and the trial court found the accused guilty and convicted him to
undergo simple imprisonment for 9 months, which on appeal was modified
to one of simple imprisonment for three months and to pay a compensation
of Rs.1,20,000/-. It is against that decision the present revision is filed.
2. The case of the complainant is that the accused had borrowed a
sum of Rs.1,20,000/- and towards discharge of liability he had issued a
cheque dated 30.7.1998, which when presented for encashment, it was
returned with the endorsement ‘payment stopped by the drawer’. Thereafter
a notice was issued and proceedings were initiated. The defence of the
accused is a total denial and according to him he had lost the cheque leaves
CRL.RP 1570/2006 -:2:-
and it had been misused by the complainant to initiate proceedings. Both the
courts below considered the documentary as well as oral evidence and
decided to prefer the evidence of PW1 and held that there is sufficient
evidence to prove the transaction. Learned counsel for the petitioner would
contend that in a 138 case also the burden is on the complainant to prove
the execution of the cheque and there is no presumption regarding the
execution of the cheque under Section 139 of the NI Act. There cannot be
any doubt about the correctness of that proposition. In this case there is
sufficient evidence to establish the execution of the cheque. PW1 has been
examined and he has spoken in line with the complaint. The Appellate
Court held that though it was argued that there was an application for
sending the signature for comparison, it has not been considered by the trial
court. But, in order to avoid further delay, the appellate court itself took the
task of comparing the admitted signature with the disputed signature. I am
conscious of the fact that though it is permissible under Section 73 of the
Indian Evidence Act, it is a hazardous method of comparison for the reason
that the courts are not experts in comparing the signature. But the Apex
Court had held that comparison of signature is not totally prohibited, but it
can be taken as a piece of corroborative evidence if other material evidence
is available to substantiate the same. PW1’s evidence had been adduced in
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this case regarding the execution and on the background of that evidence,
the appellate court has taken the task of comparing the signature to arrive at
a decision regarding the execution of the cheque. The appellate court
found that there was no mistake committed by the trial court in concluding
that the petitioner had committed offence under Sec.138. I do not find any
mistake in taking such an approach.
3. So far as the other ingredients are concerned, it is proved by
sufficient documentary evidence and the stoppage of payment will not
detract the offence under Section 138 because a clever litigant can issue a
cheque and stop the payment thereby blocking the institution of a criminal
prosecution under Section 138. From these discussions, I hold that there is
nothing to interfere with the decision rendered by the courts below
regarding conviction under Section138.
4. So far as sentence is concerned, I intend to modify the sentence to
undergo imprisonment for one day, i.e. till the raising of the court and
convert the compensation into that of fine which on realisation be disbursed
to the complainant.
In the result, the revision petition is disposed of as follows: (1) The
conviction under Section 138 is sustained.(2) The sentence is modified and
the petitioner is directed to undergo simple imprisonment for a day,i.e. till
CRL.RP 1570/2006 -:4:-
the raising of the court and to pay a fine of Rs.1,20,000/- which on payment
shall be disbursed to the complainant and in default, the petitioner shall
undergo simple imprisonment for one month. (3) The revision petitioner
shall present himself before the trial court for receiving sentence and for
making payment of fine on 15.2.2009. In case of failure to be present, the
trial court shall execute the sentence. (4) If any amount is deposited as
compensation, it shall be converted into fine and the said amount shall be
disbursed to the complainant on appropriate application.
M.N.KRISHNAN, JUDGE
Cdp/-