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