V.S.Saiju vs P.C.Antony on 26 July, 2006

Kerala High Court
V.S.Saiju vs P.C.Antony on 26 July, 2006




Crl Rev Pet No. 2533 of 2006()

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.ANIL GEORGE

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :26/07/2006

 O R D E R
                                   R. BASANT, J.
                            - - - - - - - - - - - - - - - - - - - -
                             Crl.R.P.No.  2533 of   2006
                           -  - - - -  - - - - - - - - - - - - - - -
                    Dated this the 26th  day of   July, 2006

                                       O R D E R

This revision petition is directed against a concurrent verdict

of guilty, conviction and sentence in a prosecution under Section 138

of the N.I. Act.

2. The cheque is for an amount of Rs. 1,50,000/- It bears

the date 22.2.2001. Signature in the cheque is admitted. Handing

over of the cheque is not disputed. In the course of the trial the

accused took up a contention that the cheque was issued not for the

discharge of any legally enforcible debt/liability, but only as a blank

signed cheque as security when an amount of Rs.25,000/- was

borrowed by the accused from the complainant in 1998.

3. A notice of demand was allegedly issued. There is some

confusion as to whether Ext.P3 or P5 is the copy of the notice sent.

Initially it was asserted that the original of Ext.P3 was sent. Later it

was asserted that it was the original of Ext.P5 which was sent. There

Crl.R.P.No. 2533 of 2006 2

is no much difference between Exts.P3 and P5 except that the date of the

notices differ. The complainant examined himself as PW1 and proved

Exts.P1 to P5. On the side of the accused DWs. 1 to 3 were examined

and Exts.D1 and D2 were marked. The learned counsel for the petitioner

submits that it is not necessary to advert to the evidence of DW3 and

Exts.D1 and D2, which have no direct bearing or relevance to the challenge.

DW1 is the Administrator of a School, where the complainant had done

some plumbing work. The petitioner and the complainant are admittedly

friends and plumbers. DW1 was examined by the petitioner in support of

his assertion that the complainant could not have had the amount of

Rs.1,50,000/- available with him. DW1, though examined by the accused,

did not support that version and his evidence indicates that an amount of

Rs.1,50,000/- could have been available with the complainant and at any

rate it was not an impossibility. DW2 was examined by the petitioner in

support of his contention that the others cheque which came out of the

cheque book from which Ext.P1 cheque could have come, were encashed

earlier in the account of the petitioner.

4. The courts below anxiously considered all the relevant

Crl.R.P.No. 2533 of 2006 3

contentions and concurrently came to the conclusion that all ingredients of

the offence punishable under Section 138 of the N.I. Act have been

established and that the petitioner has not succeeded in establishing the

defence urged by him. Accordingly they proceeded to pass the impugned

concurrent judgments.

5. Called upon to explain the nature of challenge which the

petitioner wants to mount against the impugned concurrent judgments, the

learned counsel for the petitioner only reiterates the contentions that were

raised before the courts below. The first contention that deserves to be

considered is that Ext.P4 acknowledgment card is not signed by the

petitioner. There is no dispute that Ext.P4 bears the correct address of the

petitioner. It is true that the postal receipt has not been produced by the

complainant. Notice was sent by the counsel. Ext.P4 acknowledgment

card clearly shows that a registered letter addressed to the accused in his

correct address by pre-paid post was acknowledged by some one. The

petitioner wants to rely on want of congruity between his admitted

signatures and the signature in Ext.P4. From that he contends that he had

not acknowledged the receipt of the notice under Ext.P4. I find absolutely

Crl.R.P.No. 2533 of 2006 4

no merit in the contentions raised.

6. The burden under Section 138 of the N.I. Act on the complainant

is ” to give notice”. It is trite by now that this burden on the complainant is

discharged when notice by pre-paid post is despatched to the addressee.

Significantly there is no contention that the address shown on Ext.P4 is not

correct. Ext.P4 shows that the registered letter addressed to the accused in

his correct address was sent and the acknowledgment card was returned

with a signature purporting to be that of the petitioner/accused. It is true

that the postal receipt has not been produced. It is true that the complainant

has been prevaricated on the question whether Ext.P3 or P5 is the copy of

the notice despatched . But all these will not militate against the case of the

complainant. When Ext.P4 is produced to show acknowledgment, it would

be idle, puerile and unreasonable for the court to still look for evidence of

despatch of the postal article acknowledged under Ext.P4. The said

contention does not appeal to me. The same must fail.

7. Regarding the contention that the cheque was handed over as a

signed blank cheque as security, there are circumstances loaded against the

petitioner. The very theory conveniently raised that a blank signed cheque

Crl.R.P.No. 2533 of 2006 5

was handed over deserves careful, cautious, nay suspicious approach.

Such defence cannot be readily swallowed. At any rate, the burden must

fall on the person who raises such an artificial defence. The burden under

Section 139 of the N.I. Act does also stare at the petitioner. I am of the

opinion that the complainant has satisfactorily discharged his burden and

the attempt of the accused by examination of DWs. 1 to 3 and Exts.D1 and

D2 fails significantly short of the expected mark which he is to accomplish.

In these circumstances the challenge raised on merits must necessarily fall

to the ground.

8. The counsel then prays that leniency may be shown. The

petitioner now faces a sentence of imprisonment till rising of court. There

is also a direction to pay an amount of Rs.1,75,000/- as fine. The

complainant has been compelled to fight two rounds of unnecessary legal

battle by now and wait from 22.2.2001 for the redressal of his genuine

grievances. I am not able to agree that the sentence imposed is excessive

as to justify intervention by this court.

9. The learned counsel finally prays that the petitioner may be

granted some further time to appear before the learned Magistrate to serve

Crl.R.P.No. 2533 of 2006 6

the sentence. I am not satisfied that any further leniency needs or deserves

to be shown. However it can be directed that the petitioner shall appear

before the trial court on 30.9.2006 to serve the impugned sentence. Till

then the sentence shall not be executed. If the petitioner does not so

appear, the learned Magistrate shall thereafter take necessary steps to

execute the impugned sentence.

10. In the nature of the relief which I propose to grant, it is not

necessary to wait for issue and return of notice to the respondent.

11. This revision petition is hence dismissed with the above




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