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