IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3105 of 2010()
1. SUSHAMA, SOBHA BHAVAN, S.N.COLLEGE,
... Petitioner
Vs
1. K.SOMAN, KOLLANVILA VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :02/11/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.3105 of 2010
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Dated this the 2nd day of November, 2010.
O R D E R
Aggrieved by the order of conviction and sentence imposed
against the accused in a prosecution for an offence punishable
u/s.138 of Negotiable Instruments Act, the accused approached
this court by filing the above revision petition.
2. The case of the complainant is that the accused
borrowed a sum of Rs.2,00,000/- from the complainant and
towards the discharge of the said liability, the accused issued
Ext.P1 cheque dated 7.10.2002 for an amount of Rs.2,00,000/-.
According to the prosecution, when the above cheque 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-I,
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Crl. R.P.No.3105 of 2010
Attingal, by filing a formal complaint, upon which cognizance
was taken u/s.138 of Negotiable Instruments Act and instituted
C.C.No.697/03. During the trial of the case, PW1, the
complainant himself was examined from the side of the
complainant and Exts.P1 to P6 series were marked. From the
side of the defence, Dws.1 and 2 and Exts. D1 to D6 were also
produced and marked. 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 undergo simple imprisonment for 2 months and also
directed him to pay a sum of Rs.2,02,000/- to the complainant as
compensation u/s.357(3) of Cr.P.C., failing which the revision
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Crl. R.P.No.3105 of 2010
petitioner was directed to undergo simple imprisonment for 3
months.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 18.6.2010 in
Crl.A.163/06, the Court of Addl. Sessions Judge (Fast Track
Court-III), Thiruvananthapuram, allowed the appeal only in part.
Thus while confirming the conviction, the sentence of
imprisonment is modified and reduced to one day simple
imprisonment ie., till the rising of the court and in all other
respects, ie., with respect to the direction to pay compensation,
the compensation amount and the default sentence, the trial
court’s direction are confirmed. It is the above conviction and
sentence challenged in this revision petition.
4. I have heard Adv.Sri.Pirappancode V.S.Sudhir, the
learned counsel appearing for the revision petitioner and also
perused the judgments of the courts below.
5. The learned counsel for the revision petitioner
vehemently argued that, the trial court as well as the lower
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Crl. R.P.No.3105 of 2010
appellate court committed wrong in holding the guilt of the
revision petitioner, especially when the revision petitioner has
established a probable case and thereby rebutted the
presumption. The learned counsel vehemently submitted that,
in the evidence of PW1 there is a serious contradiction and
improvement, regarding the actual place of transaction claimed
by the complainant. It is also the submission of the learned
counsel that, the defence version, that the cheque in question
was one among the two cheques given to the son-in-law of the
complainant by the husband of the revision petitioner was not
properly considered by the courts below. The learned counsel
also submitted that right from the reply notice itself, the stand
taken by the defence is to the effect that while denying the
transaction claimed by the complainant, the specific case of the
defence is that the husband of the revision petitioner had
transaction with the son-in-law of the complainant and thus
when the husband of the revision petitioner obtained an amount
from the son-in-law during the year 1999, he had issued two
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Crl. R.P.No.3105 of 2010
cheques and though the said liabilities have already discharged
by the husband, the cheque in question was not returned and
the same were reached in the hands of the complainant through
the daughter of the complainant because there was difference of
opinion among the daughter of the complainant and his son-in-
law. On the basis of the above version and supported by Ext.D1
statement of account of the bank, which would show that there
was no transaction after 22.11.2000 and therefore according to
the learned counsel, the entire case of the complainant is false
and the same was not proved beyond reasonable doubt.
6. I am unable to sustain the above contentions and
pleadings. At the outset it has to be noted that, the courts below
have concurrently found in favour of the complainant and
rejecting the contention advanced by the defence. It has to be
noted that the complainant himself was mounted to the box and
deposed regarding the transaction and in terms of the
averments contained in the complaint and he had produced
Ext.P1 cheque from his possession and the said cheque is
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Crl. R.P.No.3105 of 2010
pertained to the account of the revision petitioner and the same
contain his signature. In order to circumvent the above evidence
of the case of the complainant, the plea set up by the accused is
to the effect that the cheque in question is one among the two
cheques given to the son-in-law of the complainant during the
year 1999 connected with a transaction between the husband of
the revision petitioner and the said son-in-law of the
complainant. It is also the case of the revision petitioner that,
those liabilities were discharged by the husband of the revision
petitioner. The trial court in its judgment through an elaborate
discussion that contained in para 7 of its judgment found that the
said version of the defence is false as the same was not
substantiated. I am not proposed to reproduce the findings or
the observations entered into by the trial court. In order to
establish the above part of the defence version, no evidence is
adduced and no contemporary document is produced. Therefore
mere denial or explanation is not sufficient to substitute the legal
requirement of rebutting the presumption. When the accused
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Crl. R.P.No.3105 of 2010
pleaded that the cheque in question reached in the possession
of the complainant, at least it is his primary duty to establish or
probabilise that the cheque in question was entrusted with the
son of the complainant. But there is no evidence or material.
Mere assertion is not sufficient. It is true that regarding the
place of transaction claimed by the complainant, there is some
improvement, which according to me is not sufficient to rebut the
presumption which is otherwise in favour of the complainant by
virtue of S.118(a) and 139 of Negotiable Instruments Act,
especially when the complainant produced the cheque in
question from his possession and supported by his oral
evidence. In the light of the above facts and circumstances and
the materials on record, I find no reason to interfere with the
order of conviction recorded by the courts below and accordingly
the conviction recorded by the courts below is approved.
7. As this court is not inclined to interfere with the
conviction recorded by the courts below, the learned counsel for
the revision petitioner submitted that, some breathing time may
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be granted to pay the compensation 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
subject to other facts and circumstances involved in the case.
8. The apex court in a recent decision reported in
Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457)
has held that, in the case of dishonour of cheques, the
compensatory aspect of the remedy should be given priority
over the punitive aspects. In the present case, the cheque in
question is dated 7.10.2002, that too for an amount of
Rs.2,00,000/-. Thus as per the records and the findings of the
courts below, which approved by this court, a sum of
Rs.2,00,000/- which belonged to the complainant is with the
revision petitioner for the last 8 years. Considering the above
facts and settled legal position, I am of the view that, while
granting some time to the revision petitioner to pay the
compensation, the amount can be enhanced slightly.
In the result, this revision petition is disposed of confirming
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Crl. R.P.No.3105 of 2010
the conviction against the revision petitioner u/s.138 of
Negotiable Instruments Act as recorded by the courts below.
Accordingly, the sentence of imprisonment awarded by the
courts below is confirmed and the revision petitioner is directed
to pay a sum of Rs.2,35,000/- to the complainant as
compensation u/s.357(3) of Cr.P.C., within 3 months from today,
and in default in paying the compensation amount within the
time stipulated above, the revision petitioner is directed to
undergo simple imprisonment for a period of 4 months.
Accordingly, the revision petitioner is directed to appear before
the trial court on 2.2.2011, to receive the sentence of
imprisonment and to pay the compensation amount as fixed by
this court. In case, any failure on the part of the revision
petitioner in appearing before the court below as directed above
and in paying the compensation 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. The execution of warrant if any, pending
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against the revision petitioner shall be deferred till 2.2.2011.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/