High Court Kerala High Court

Sekharan vs Rajan on 13 December, 2006

Kerala High Court
Sekharan vs Rajan on 13 December, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 988 of 1998()



1. SEKHARAN
                      ...  Petitioner

                        Vs

1. RAJAN
                       ...       Respondent

                For Petitioner  :SRI.T.M.CHANDRAN

                For Respondent  :SRI.V.SANTHARAM

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :13/12/2006

 O R D E R
                            K.P.BALACHANDRAN, J.

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                             Cr.R.P.NO.988 OF 1998

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                Dated this the 13th day of December 2006


                                          ORDER

The accused convicted for offence under Section 138 of N.I.

Act and sentenced thereunder is the petitioner in this revision. The

sentence awarded to him by the trial court was simple

imprisonment for 9 months. He was further directed to pay an

amount of Rs.40,000/- as compensation to the complainant under

Section 357(3) Cr.P.C. and in default to undergo simple

imprisonment for a further term of three months. In appeal, the

Sessions Judge confirmed the conviction but modified the sentence

to one of fine of Rs.47,500/- only and in default to undergo R.I. for a

period of three months. It is challenging the concurrent conviction

under Section 138 of the N.I. Act and the modified sentence that the

accused have come up in revision.

2. The contentions that are advanced before me by the

learned counsel for the petitioner are (i) that the petitioner was

being made to open an account after putting him under influence of

liquor by his friend Bilan who himself obtained the passbook and

the cheque book from the Bank; that he was not aware of the

consequence of Bilan retaining the passbook and the cheque book

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and he understood the seriousness only on receipt of lawyer notice

and summons from the court and that the accused had actually not

signed in Ext.P1 cheque and (ii) that the modified sentence awarded

by the Sessions Court is illegal as no fine above Rs.5,000/- could be

imposed as the case is one that was disposed of by a Judicial First

Class Magistrate.

3. The contention of the accused is that he was made to drink

by his friend Bilan and while under influence of liquor he was taken

to the Bank by Bilan and caused an account to be opened and Bilan

himself was retaining the passbook and the cheque book and he has

not issued Ext.P1 cheque to the complainant. Apart from raising

such a contention, the petitioner has not taken any steps to examine

the said Bilan as a witness and no attempt was made also to

examine the Bank Manager or other officer of the Bank who did the

opening of the account for the petitioner. It is worthy to note that

the complainant who is the first respondent in this revision has

given evidence as PW1 that the accused has signed in Ext.P1

cheque and that he was so signing in Ext.P1 cheque in his presence.

Nothing is brought out in cross examination to discard the

testimony of PW1. The petitioner has no case that Ext.P1 cheque is

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not one drawn on his account. When the cheque is one drawn on

his account, unless he establishes his contention that the account

was caused to be opened by his friend Bilan rendering him under

influence of liquor, he cannot rest by contending that he has not

issued cheque to the complainant. Admittedly, he has received

notice issued through lawyer consequent on dishonour of Ext.P1

cheque for an amount of Rs.40,000/-. Any ordinary prudent man

would be alerted on receipt of such a notice and would have

immediately reacted thereto by issuing a reply notice stating the

details and also would have taken action against Bilan and would

have at the same time taken steps to see that no further

transactions are effected in the account so opened. Strangely

enough the petitioner has not caused any reply to be issued to the

notice received by him intimating him of the dishonour of Ext.P1

cheque. When he tendered evidence as PW1 he has stated that he

had entrusted the notice to a lawyer for issuing a reply notice and

has stated that the said lawyer is not the counsel appearing for him

in court. At the same time, he does not mention the name of the

lawyer with whom he entrusted the notice to issue a reply. Under

these circumstances, the contention that Ext.P1 cheque is not one

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issued by the petitioner cannot be swallowed except with a pinch of

salt.

4. It is further contented by the counsel for the petitioner that

the cheque was forwarded to hand writing expert for expert opinion

and the expert has given a report and that has not been taken into

account by the courts below. The said argument also is devoid of

merit. The handwriting expert has stated only that probably it could

be that the signature in Ext.P1 might not have been put by the

petitioner whose alleged standard signature was forwarded for

examination. The learned Magistrate has opined that the signatures

supplied as standard signatures for comparison were not signatures

of the petitioner taken from any authentic document executed

contemporaneously with opening of the Bank account but was

signatures put by him subsequently. Such signatures cannot be

accepted as standard signatures so as to make comparison with

disputed signatures so as to get an authentic opinion from an

expert. All the contentions raised by the petitioner in the above

circumstances was rightly being discarded by the courts below. In

the light of the discussions made above, I do not find any illegality

or impropriety in the judgments of the courts below finding the

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petitioner guilty of the offence under Section 138 of N.I. Act and

therefore, I confirm the conviction of the petitioner for offence

under Section 138 of N.I. Act.

5. All the same, the sentence awarded by the learned

Magistrate was modified in appeal by the Sessions Judge to one of

fine of Rs.47,500/- in default of payment of which the petitioner was

to undergo R.I. for a period of three months. It is to be noted that

the trial of the case was being conducted by the Judicial First Class

Magistrate, Palakkad. A Judicial First Class Magistrate is not

competent to impose a fine more than Rs.5,000/- and a Sessions

Judge considering an appeal preferred from judgment of the Judicial

First Class Magistrate also has no competency to award sentence of

fine exceeding Rs.5,000/-.

In the result allowing this Revision in part I modify and reduce

the sentence of fine imposed by the Sessions Judge to fine of

Rs.5,000/- only. However, the default sentence is maintained. The

fine amount, if realised, shall be paid over to the first

respondent/complainant.

K.P.BALACHANDRAN, JUDGE

jes

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K.P.BALACHANDRAN, J.

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Cr.R.P.NO.988 OF 1998

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ORDER

Dated, 13th day of December 2006