IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3109 of 2006()
1. E.N.PHALGUNAN, STATE BANK OF TRAVANCORE,
... Petitioner
Vs
1. P.G.PREMNATH, DEVASWAMCHIRA,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.V.K.PRAVEEN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :26/09/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3109 of 2006
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Dated this the 26th day of September, 2006
O R D E R
This revision petition is directed against a concurrent verdict
of guilty, conviction and sentence in a prosecution under Section 138
of the N.I. Act.
2. The cheque is for an amount of Rs. 48,500/-. It bears the
date 26.2.2003. The petitioner now faces a sentence of
imprisonment till rising of court and to pay the actual cheque amount
of Rs. 48,500/- as compensation and in default to undergo S.I. for a
period of one month.
3. The signature in the cheque is admitted. The notice of
demand, though duly received and acknowledged, did not evoke
any response. The complainant examined himself as PW1 and
proved Exts.P1 to P8. The accused did not adduce any evidence,
nay he admittedly did not take any specific stand in the course of the
trial. The courts below took note of the fact that the accused has not
Crl.R.P.No. 3109 of 2006 2
advanced any specific defence when he was examined under Section 313
Cr.P.C. They held concurrently that the complainant has succeeded
in establishing all ingredients of the offence punishable under Section
138 of the N.I. Act. Accordingly they proceeded to pass the
impugned concurrent judgments.
4. Called upon to explain the nature of challenge which the
petitioner wants to mount against the impugned concurrent judgments, the
learned counsel for the petitioner submits that the courts below appear to
have been obsessed by the fact that the accused did not take any specific
stand in his S.313 examination. The trial court as well as the appellate
court has harped on this aspect in the judgment. The learned counsel for the
petitioner submits that the mere fact that the accused does not take any
specific stand in the course of his S.313 examination does not ipso facto
entail a conviction. I have no quarrel with the proposition of law advanced
by the learned counsel. The silence of the accused in S.313 examination or
in the course of the trial cannot by itself be a sufficient or satisfactory
reason to persuade a court to enter a verdict of guilty and conviction against
such accused. But that is not the fact scenario in this case. PW1 had
Crl.R.P.No. 3109 of 2006 3
asserted in evidence the circumstances under which the cheque with the
corrected date was available in his possession. The accused offered no
explanation either in the course of cross examination or when examined
under S. 313 Cr.P.C.
5. Under Section 3 of the Evidence Act, the Court is to hold a fact to
be proved if on the basis of all the materials before it, it believes in the
existence of such fact or considers its existence so probable that an
ordinarily prudent man would proceed on the supposition that such fact
exists. In the absence of a satisfactory explanation, the omission/failure to
take a specific stand in the 313 examination and in the course of cross
examination, though not by themselves sufficient, are certainly factors
which every Judge of facts would consider while appreciating the evidence
tendered by the complainant. In that view of the matter, the courts below
have not committed any error. On the materials available, reliance can be
placed on the evidence of PW1. When believed, the evidence of PW1
unerringly establishes all ingredients of the offence punishable under
Section 138 of the N.I. Act. The challenge on merits must and does in
these circumstances, fail.
Crl.R.P.No. 3109 of 2006 4
6. The learned counsel for the petitioner prays for leniency. I note
that indulgence and leniency to a fault has already been shown in favour of
the petitioner. There is no space for this court to show any leniency.
7. The learned counsel for the petitioner submits that an amount of
Rs.15,000/- has already been deposited before the trial court as directed by
the appellate court. If that be so, needless to say, credit shall be given to
such amount by the trial court.
8. This revision petition is hence dismissed. But I accept the request
of the learned counsel for the petitioner and direct that the sentence shall
not be executed till 30.11.2006. The petitioner shall appear before the
learned Magistrate on or before that date. If he does not so appear, the
learned Magistrate shall thereafter proceed to take necessary steps to
execute the impugned sentence.
(R. BASANT)
Judge
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