IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl Rev Pet No. 2533 of 2006() 1. V.S.SAIJU, ... Petitioner Vs 1. P.C.ANTONY, PATTAPARAMBIL HOUSE, ... Respondent 2. STATE OF KERALA, 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
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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
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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
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
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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
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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
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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