IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3349 of 2010()
1. LAKSHMANAN, S/O.KANNAN,
... Petitioner
Vs
1. HANEEFA, S/O.KOYA RAWTHER,
... Respondent
2. STATE OF KERALA REP. BY PUBLIC
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :16/11/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.3349 of 2010
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Dated this the 16th day of November, 2010.
O R D E R
The accused in a prosecution for an offence u/s.138 of
Negotiable Instruments Act is the revision petitioner, as he is
aggrieved by the order of conviction and sentence imposed by
the courts below.
2. The case of the complainant is that the accused/revision
petitioner borrowed a sum of Rs.65,000/- and towards the
discharge of the said liability, the accused issued a cheque dated
19.10.2007 for a sum of Rs.65,000/-, which when presented for
encashment dishonoured, as there was no sufficient fund in the
account maintained by the accused and the cheque amount was
not repaid inspite of a formal demand notice and thus the revision
petitioner has committed the offence punishable u/s.138 of
Negotiable Instruments Act. With the said allegation, the
complainant approached the Judl. First Class Magistrate Court-
III, Palakkad, by filing a formal complaint, upon which cognizance
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was taken u/s.138 of Negotiable Instruments Act and instituted
S.T.No.3155/07. During the trial of the case, PW1, the
complainant himself was examined from the side of the
complainant and Exts.P1 to P4 were marked. From the side of
the defence, DW1 was examined and no documentary evidence
adduced from the side of the defence. On the basis of the
available materials and evidence on record, the trial court has
found that the cheque in question was issued by the revision
petitioner/accused for the purpose of discharging his debt due to
the complainant. Thus accordingly the court found that, the
complainant has established the case against the accused/
revision petitioner and consequently found that the accused is
guilty and thus convicted him u/s.138 of Negotiable Instruments
Act. On such conviction, the trial court sentenced the revision
petitioner to pay a fine of Rs.65,000/-, failing which the revision
petitioner was directed to undergo simple imprisonment for 1
month. It is also ordered that if the fine amount is realised, the
same shall be paid to the complainant as compensation u/s.357
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(1)(b) of Cr.P.C.
3. Aggrieved by the order of conviction and sentence,
challenging the judgment of the trial court, though an appeal
was filed, at the instance of the revision petitioner/accused, by
judgment dated 21.7.2010 in Crl.A.780/08, the Court of
Sessions Judge-Palakkad, dismissed the appeal, confirming the
conviction and sentence imposed against the accused by the
trial court. It is the above conviction and sentence challenged in
this revision petition.
4. I have heard Adv.Sri.Rajesh Sivaramankutty, the
learned counsel appearing for the revision petitioner and I have
also perused the judgments of the courts below.
5. The learned counsel for the revision petitioner
vehemently argued that the complainant has miserably failed to
establish the case against the revision petitioner and absolutely
no evidence was adduced by the complainant to establish as to
how and when the transaction was taken place. Therefore
according to the learned counsel, the findings arrived on by the
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courts below, in favour of the complainant is liable to be set
aside. It is also the submission of the learned counsel that, the
accused by producing cogent and convincing evidence, rebutted
the presumption but the courts below miserably failed to
appreciate the defence evidence in its true perspectiveness and
therefore the conviction and sentence imposed against the
revision petitioner is liable to be set aside. Along with the
revision petition, the revision petitioner had also produced
Annexure A complaint dated 12.3.2008 filed before the Court of
the Judicial First Class Magistrate-III, Palakkad. It is the
contention of the learned counsel that the defence version was
substantiated through the evidence of DW1 and also through
the statement furnished by the accused during his examination
u/s.313 of Cr.P.C. The specific plea set up by the accused is to
the effect that, he had no transaction with the complainant and
according to the defence, he had borrowed a sum of Rs.3,000/-
from DW1 and the said amount was repaid during the month of
May 2005 but prior to that, when DW1 demanded back the
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money, the accused issued a cheque to him. It is the above
cheque misused by the complainant for filing the present
complaint. In order to prove the above facts and defence, the
revision petitioner very much relied upon the evidence of DW1.
Both the courts below elaborately considered the evidence of
DW1 and found against the revision petitioner. It is on the basis
of such evidence, the learned counsel for the revision petitioner
sought the interference of this court with the findings of the
courts below.
6. I have carefully considered the contentions advanced by
the learned counsel for the revision petitioner and also perused
the judgments of both the courts below. The specific case of the
complainant is that the accused borrowed a sum of Rs.65,000/-
from the complainant and towards the discharge of the said
liability the accused issued the cheque in question. In support
of the above claim and the transaction, the complainant himself
mounted to the box and gave oral evidence and he was
subjected to cross examination and during which also, he had
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Crl. R.P.No.3349 of 2010
deposed regarding the claim and the allegation contained in the
complaint. This court in a decision reported in, Johnson Scaria
Vs. State of Kerala {2006(4) KLT 290}, has held that,
“the burden is always on the prosecution to
prove the offence against an indictee in all
executions and a prosecution u/s.138 of
Negotiable Instruments Act is no exception
to that general rule. Execution and issue of
the cheque have to be proved to draw the
presumption u/s.139 of Negotiable
Instruments Act and S.139 does not shift
the burden to prove execution and issue of
the cheque. Admission of signature in a
cheque goes a long way to prove due
execution. Possession of the cheque by the
complainant similarly goes the long way to
prove issue of the cheque. The burden rests
on the complainant to prove execution and
issue. But u/s.114 of the Evidence Act
appropriate inferences and presumptions can
be drawn in each case on the question of
execution and issue of the cheque depending
on the evidence available and explanations
offered”.
In the very same decision cited above, this court has also held
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Crl. R.P.No.3349 of 2010
that, “the presumption will live, exist and survive and shall
vanish only when the “contrary proved” by the accused”. In
the light of the above decision, the question to be examined is,
‘whether the defence has succeeded in giving atleast a probable
explanation as to how the cheque in question reached in the
hands of the complainant’. Though the case of the accused is to
the effect that, the cheque in question was handed over to DW1,
absolutely there is no contemporary document or any
independent evidence to substantiate the above version.
Admittedly, DW1 is a close friend of the accused. There is no
explanation for giving a blank cheque even for a sum of
Rs.3,000/-, if DW1 is a close friend of the accused. It can also
be seen that there is no explanation for not getting back the
cheque in question, in the light of the claim of the accused that
he had repaid the amount to DW1. The only explanation is to
the effect that the accused was told by DW1 that the cheque
which entrusted with DW1 is lost. But the above explanation
also can not be accepted because there is no timely action from
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Crl. R.P.No.3349 of 2010
the part of the revision petitioner against encashing the cheque
by some body, though he came to know that the cheque which
contained his signature but does not contain the amount or the
date, lost from DW1. If the said explanation is true and correct,
it was incumbent on the part of the accused to inform his bank
not to honour the cheque, if the same is presented for
encashment. No such step was taken by the revision petitioner
at appropriate time. So absolutely there is no evidence to show
that the cheque in question is the one which entrusted with
DW1.
7. Another point raised by the learned counsel is to the
effect that, immediately after receiving the notice from the
complainant, the accused has filed a complaint before the
Dy.S.P. and even DW1 has admitted that, he himself and the
accused as well as DW1 were summoned to the office of
Dy.S.P. and the matter was settled therein itself. But apart from
the mere explanation, absolutely there is no contemporary
documents or independent evidence to substantiate the above
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Crl. R.P.No.3349 of 2010
version. If actually a complaint was filed before the Dy.S.P. and
the matter was settled therein, naturally there would be
appropriate endorsement in the petition register or some other
books kept in the office of the Dy.S.P. and if the settlement was
true, the same could have been established by summoning
those documents from the office of the Dy.S.P. or by examining
any witness including the Dy.S.P. But in this case, no such step
was taken and as such there is no evidence to substantiate the
plea that he had filed a complaint before the Dy.S.P. and the
matter was settled thereon. In the absence of any evidence or
convincing explanation to substantiate the defence version, I am
of the view that, the trial court as well as the appellate court is
perfectly correct and legal in rejecting the defence version and
holding that the accused has not succeeded in rebutting the
presumption. Therefore, I find no reason to interfere with the
concurrent findings of the courts below, as such there is no
merit in this revision petition.
8. As this court is not inclined to interfere with the
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Crl. R.P.No.3349 of 2010
conviction recorded by the courts below, the learned counsel for
the revision petitioner submitted that, some breathing time may
be granted to pay the fine amount. Having regard to the facts
and circumstances involved in the case, I am of the view that
the said submission can be considered positively but while
granting some time to pay the fine, according to me, the amount
can be enhanced slightly considering the fact that the cheque in
question is dated 19.10.2007 that too for an amount of
Rs.65,000/-, which belonged to the complainant, but the same is
with the revision petitioner for the last 3 years.
In the result, this revision petition is disposed of confirming
the conviction against the revision petitioner u/s.138 of
Negotiable Instruments Act as recorded by the courts below.
Accordingly, while confirming the sentence to pay fine, the
amount is enhanced to the tune of Rs.84,500/-, which shall be
deposited within 3 months from today and in case of default in
paying the fine amount within the stipulated time, the revision
petitioner is directed to undergo simple imprisonment for 2
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months. Accordingly, the revision petitioner is directed to pay
the enhanced fine amount on or before 17.2.2011. In case, any
failure on the part of the revision petitioner in paying the fine
amount, the trial court is free to take coercive steps to secure
the presence of the revision petitioner and to execute the
sentence awarded against the revision petitioner. On realisation
of the fine amount, a sum of Rs.80,000/- shall be paid to the
complainant as compensation u/s.357(1)(b) of Cr.P.C. and the
remaining amount shall be deposited in the State Exchequer.
The execution of warrant if any, pending against the revision
petitioner shall be deferred till 17.2.2011.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/