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
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Crl.R.P. No.956 OF 2005
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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
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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
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the complainant on appropriate application.
M.N.KRISHNAN, JUDGE
Cdp/-