High Court Kerala High Court

M.C.Sahadevan vs E.P.Sethumadhavan on 18 June, 2007

Kerala High Court
M.C.Sahadevan vs E.P.Sethumadhavan on 18 June, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 1297 of 2006()


1. M.C.SAHADEVAN, S/O.KESAVAN NAIR,
                      ...  Petitioner

                        Vs



1. E.P.SETHUMADHAVAN, S/O.VELAYUDHAN,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.SIBY MATHEW

                For Respondent  :SRI.K.M.SATHYANATHA MENON

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :18/06/2007

 O R D E R
                              V. RAMKUMAR, J.


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                        Crl.R.P. No. 1297 OF 2006 B

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                  Dated this the 18th day of June, 2007


                                    O R D E R

In this revision filed under section 397 read with

section 401 Cr.P.C., the petitioner who was the accused in

C.C.No.140/2003 on the file of JFCM-II, Manjeri for an offence

punishable under section 138 of the Negotiable Instruments Act,

1881, challenges the conviction entered and the sentence passed

against him for the said offence. The courts below have

concurrently found the appellant guilty of the offence and have

sentenced him to simple imprisonment for one year and to pay a

sum of Rs.2 lakhs by way of compensation to the complainant

under section 357 Cr.P.C.

2. I heard the learned counsel for the petitioner and the

learned counsel for the respondent/complainant.

3. The learned counsel appearing for the revision

petitioner made the following submissions before me in support of

the revision:-

The specific case of the complainant is that the sum of Rs.2

lakhs was borrowed by the revision petitioner/accused in August,

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2001 for securing appointment for his son to the post of a teacher

in a private management school and that the accused had

executed an agreement undertaking to pay the amount within ten

months. His further case is that the accused did not honour the

said agreement and time was twice extended. It is after the lapse

of one year that the complainant would allege the execution of

Ext.P1 cheque on 14.8.2002 by the accused for Rs.2 lakhs. The

stand of the revision petitioner has been one of total denial of any

liability under the cheque in question. If so, the non-production of

the alleged written agreement is fatal to the case of the

complainant. The defence of the revision petitioner was that the

complainant was a tailor in the tailoring shop run by the wife of the

revision petitioner and that there was a quarrel between the

complainant and revision petitioner’s wife resulting in the

complainant leaving the firm and at that time he must have left the

establishment after stealing the cheque book of the revision

petitioner’s wife and the present complaint was filed misusing the

cheque leaf. When the accused has disputed the act of drawing,

executing and handing over the cheque, the burden was squarely

on the complainant to prove these three ingredients for sustaining

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the complaint. The accused had even filed an application for

sending the disputed signature for comparison to the handwriting

expert and that was rejected by the trial court. The courts below

were rest content by themselves comparing the disputed signature

with the admitted signature of the accused by invoking section 73

of the Evidence Act which should not be the sole basis for entering

a conviction in view of State Vs. Pali Ram [AIR 1979 SC 14].

When the agreement allegedly executed by the accused in favour

of the complainant and have been the best evidence, withholding

of the said agreement is fatal to the complainant’s case Krishnaji

Vs. Mohammed Haji Latheef [AIR 1968 SC 1413]. The

complainant having not discharged the initial burden on him was

not entitled to secure the conviction in the light of the decisions

reported in Johnson Scaria Vs. State of Kerala [2006 (4) KLT

290], Lekha Vs. Manickan [2006 (4) KLT 800] and Kamalammal

Vs. Mohanan [2006 (3) KLT 972]. As against this, the accused

had examined his wife as DW1 and another employee in the

tailoring shop as DW2 to substantiate the defence. The conviction

recorded by the courts below cannot, therefore, be sustained.

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4. I am afraid that I cannot agree with the above

submissions. Both the courts have concurrently believed PW1,

the complainant, who has testified before court that Ext.P1 cheque

was duly executed by the accused and handed over to him. If so,

that amounts to his discharging the initial burden on him. The

non-production of the anterior agreement said to have been

executed by the accused in favour of the complainant cannot in

any way militate against the complainant’s case that Ext.P1

cheque was executed in consideration of the accused having

borrowed Rs.2 lakhs. In contradistinction, the case of the accused

that the cheque in question was misused by the complainant who

might have stolen the same from the tailoring shop of the wife of

the accused was disbelieved by both the courts below. It is

pertinent in this connection to know that in Ext.D1 reply notice, the

specific case of the accused was that the cheque book of his wife

was seen stolen and he came to know of the same only after

receipt of the statutory notice in this case. But at the stage of

evidence DW1 would have it that what was stolen was only a

cheque leaf. She also confess that she did not lodge any

complaint to the police regarding the loss of the cheque nor had

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she countermanded payment by addressing the drawee bank.

Under these circumstances, the conviction recorded by the court

below concurrently does not suffer from any irregularity, illegality

or impropriety so as to warrant interference in the rarefied

jurisdiction of this court. I, therefore, confirm the same.

5. The only other question which survives for

consideration is the adequacy or otherwise of the sentence

imposed on the appellant. It is admitted by both sides that during

the pendency of this revision the revision petitioner has deposited

a sum of Rs.65,000/-. What now remains towards his liability

under Ext.P1 is a sum of Rs.1,35,000/-. The learned counsel for

the revision petitioner prayed for leniency in the sentence in case

the revision petitioner discharges his liability within three months.

The learned counsel appearing for the complainant/respondent

also reluctantly agreed that if the balance amount of Rs.1,35,000/-

is paid within three months from today, he has no objection in this

court showing leniency in the sentence imposed on the revision

petitioner. Accordingly, in the place of the sentence imposed on

the revision petitioner by the court below the following sentence is

imposed:-

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In case the revision petitioner deposits before the court

below the balance amount of Rs.1,35,000/- within three months

from today, he shall be liable only to undergo imprisonment till the

rising of the court which shall be undergone by him within one

month thereof. If, on the other hand, the revision petitioner fails to

deposit the said amount within three months from today, the

sentence imposed on the revision petitioner by the court below will

stand revived.

This revision petition is disposed of as above.

(V. RAMKUMAR, JUDGE)

aks