High Court Kerala High Court

P.V.Syedali vs B.Kishore Kumar on 25 November, 2008

Kerala High Court
P.V.Syedali vs B.Kishore Kumar on 25 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 956 of 2005()


1. P.V.SYEDALI,
                      ...  Petitioner

                        Vs



1. B.KISHORE KUMAR, S/O. LATE BHOJARAJ,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.SAJAN VARGHEESE K.

                For Respondent  :SRI.JACOB SEBASTIAN

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :25/11/2008

 O R D E R
                            M.N.KRISHNAN, J
                       =====================
                        Crl.R.P. No.956 OF 2005
                       =====================

               Dated this the 25th day of November 2008

                                  ORDER

This revision petition is preferred against the judgment in

Crl.A.No.452/2003 of the Sessions Court, Palakkad. The said judgment

was rendered against the conviction and sentence passed in CC

No.393/2001 of the Judicial I Class Magistrate Court-III, Palakkad. It was

an action under Section 138 of the Negotiable Instruments Act whereby the

trial court convicted the accused to undergo simple imprisonment for a

period of one month and to pay a compensation of Rs.95,000/- and in

default, the accused shall undergo simple imprisonment for a further period

of 1 = months. It is against that decision the appeal was preferred and the

learned Sessions Judge dismissed the appeal.

2. Now the revision petition is preferred against the said judgment. It

is the case of the complainant that he joined in a kuri conducted by the

petitioner and for the amount due under the kuri, a cheque for Rs.95,000/-

was issued and which when presented for encashment, returned with the

endorsement ‘insufficiency of funds’. A notice was issued and thereafter

CRL.RP 956/2005 -:2:-

prosecution under Section 138 had been launched. On the other hand, the

contention of the revision petitioner appears to be that there was no issuance

of a cheque as contended in the complaint, but there was some business

transaction between the father of the petitioner and the complainant and the

son of the petitioner had handed over a blank signed cheque to the

complainant which had been made use of for the purpose of creating the

cheque to initiate prosecution.

3. Heard the learned counsel on both sides. PW1 is the complainant.

He had deposed in terms of the complaint and he had deposed that he had

joined the kuri and paid the amount and it was towards the discharge of that

liability Ext.P1 cheque had been issued. The defence appears to be that it

was in connection with some business transaction. The son of the

petitioner had given a cheque signed by his father to the complainant. DW1

has admitted that he was conducting a kuri. Further it is contended that there

is difference in writing on the body of the cheque and the signature. It was

conceded by PW1 also. The courts below rightly held that there was no

such suggestion put to PW1 when he was in the box and therefore the

version given by DW1 would not improve the case. A signature was

obtained from the court as Ext.C1, but as no other admitted signature was

produced by the revision petitioner, the comparison of handwriting under

CRL.RP 956/2005 -:3:-

Section 73 was also not done. It has also come out in evidence that there are

about 4 or 5 cases against the petitioner with respect to these type of

transactions. Both the courts below had analysed the evidence and had

arrived at a decision that the complainant had succeeded in proving that

Ext.P1 has been executed and handed over to the complainant. When the

execution is proved, then it amounts to the proof of transaction and when

the transaction is proved, presumption under Sections 118 and 139 of the NI

Act will come. Learned counsel for the petitioner had referred to the

decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya Hegde

(2008(1) KLT 425(SC) and what has been held therein is that the existence

of legally recoverable debt is not a matter of presumption under Section

139. So the Apex Court made it very clear that there cannot be any

presumption regarding the transaction but when the transaction is proved,

then the presumption will arise. There cannot be any bar for such

presumption in view of Sections 118 and 139 of the NI Act. So, both the

courts below after analysing the materials had arrived at a decision that the

case of the complainant is true and that the accused, viz., the revision

petitioner had executed a cheque in favour of the complainant towards the

discharge of the liability then there is nothing wrong in drawing the

presumption also for the purpose of deciding the case. I do not find any

CRL.RP 956/2005 -:4:-

perversity, illegality or irregularity in the decision taken by the courts

below. I sustain the finding of guilt under Section 138.

4. So far as sentence is concerned, the trial court has ordered the

accused to pay a compensation of Rs.95,000/- and in default to undergo

simple imprisonment for a further period of 1 = months. I am inclined to

reduce the sentence to undergo imprisonment for one day, i.e. till the

raising of the court and to pay a fine of Rs.95,000/- which on realisation be

disbursed to the complainant in the case. In case of default, the revision

petitioner has to undergo simple imprisonment for a period of one month.

In the result, the Crl.Revision Petition is disposed of as follows:(1)

The conviction under Section 138 of the NI Act is sustained.(2) The

sentence is modified and the petitioner is directed to undergo simple

imprisonment for a day, i.e. till the raising of the court and to pay a fine of

Rs.95,000/- which on payment or recovery shall be disbursed to the

complainant and in default, the petitioner shall undergo simple

imprisonment for one month.(3) The petitioner shall present before the

trial court to receive the sentence and for payment of fine on 16.2.2009,

failing which the trial court shall execute the sentence. If any amount is

deposited that shall be treated as a part of fine and it shall be disbursed to

CRL.RP 956/2005 -:5:-

the complainant on appropriate application.

M.N.KRISHNAN, JUDGE

Cdp/-