{"id":231230,"date":"2006-08-24T00:00:00","date_gmt":"2006-08-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-raveendranath-on-24-august-2006"},"modified":"2016-02-21T12:02:40","modified_gmt":"2016-02-21T06:32:40","slug":"unknown-vs-raveendranath-on-24-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-raveendranath-on-24-august-2006","title":{"rendered":"Unknown vs Raveendranath on 24 August, 2006"},"content":{"rendered":"
Kerala High Court<\/div>\n
Unknown vs Raveendranath on 24 August, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n he Kerala Abkari Act?   Is there a conflict between the decisions of\n\n\nthe Single Judges in   Karthikeyan   v.   State of Kerala    (2000 (3)\n\n\nKLT   639),      Balan    v.    State   of   Kerala<\/a>    (2002   (3)   KLT     161),\n\n\nGeorge Issac  v.  State of Kerala<\/a>  (2004 (1) KLT 752) and  Sabu  v.\n\n\nState of Kerala<\/a>  (2003 (2)  KLT 173)?    Is there  a concept of legal\n\n\nand illegal liquors under the scheme of the Kerala Abkari Act?  Does\n\n\nthe monstrosity  of the penal provision render the law under Section\n\n\n55 of the Kerala Abkari Act  not fair, just  and reasonable, at least in\n\n\ncertain   categories   of   cases   to   justify   judicial   review   of   the   said\n\n\nprovision   on   the   touchstone   of   Article   21   of   the   Constitution?\n\n\nThese   interesting   questions   arise   for   consideration   in   this   revision\n\n\npetition,   which   is   directed   against   a   concurrent   verdict   of   guilty,\n\n\nconviction and sentence in a prosecution under Section 55(a) of the\n\n\nCrl.R.P.No.  2747  of   2006                   2\n\n\n\nKerala Abkari Act.\n\n\n       2.  To the crucial and skeletal facts first.  The petitioner was allegedly\n\n\nfound to be transporting 22 litres of toddy in a bicycle   without any legal\n\n\nauthority at 1.15p.m. on 1.9.2000 along the public road in Cherthala taluk.\n\n\nThe   offence   was   detected     by   the   Excise   Inspector   and   party.     The\n\n\nprosecution   examined PWs. 1 to 5 and proved Exts.P1 to P4.   MO1 was\n\n\nalso  marked.    The accused does not appear to have  disputed  the specific\n\n\nallegation of fact.  He raised a contention that though he was not a licensed\n\n\ntoddy   tapper,   he   was   substituting   for   DW1,   who   did   have   the   requisite\n\n\nlicense for tapping.  The courts below concurrently came to the conclusion\n\n\nthat the said defence was not acceptable and that the petitioner, who did not\n\n\nhave the requisite authorisation to work  as a substitute tapper and  did not\n\n\nhave   the   license   of   DW1   available   with   him   at   the   time   when   he   was\n\n\ntransporting, is not entitled to succeed in that defence.   The courts further\n\n\nheld that the proved culpable  conduct amounts to   an offence punishable\n\n\nunder Section 55(a) of the Abkari Act.\n\n\n       3.   The learned counsel for the petitioner raises one vital and crucial\n\n\ncontention.     He   contends  that   toddy   is   not   an   illegal   liquor.    He   further\n\n\nCrl.R.P.No.  2747  of   2006                 3\n\n\n\ncontends that he is not alleged to sell or possess any illegal liquor   which\n\n\nmay lead to liquor tragedies.  He has not manufactured or imported liquor\n\n\nwithout   licence   and   proper   contract.     He   has   not   sold   liquor   illegally\n\n\nwithout licence causing heavy financial burden on the State by avoidance of\n\n\ntax.  Therefore, he is not liable to be proceeded against under Section 55(a)\n\n\nof the Abkari Act.   Even assuming   that he is liable for some other lesser\n\n\noffence, he cannot be prosecuted successfully for the offence under Section\n\n\n55(a) in the light of the dictum in Sabu (supra).\n\n\n       4.  The learned Director General of Prosecution, who,  at the request\n\n\nof court advanced arguments,  to  the contrary contends that Sabu has been\n\n\nwrongly decided  and that the conclusions drawn in  Sabu  are not justified\n\n\nby the scheme of the Kerala Abkari Act or the specific language of Section\n\n\n55,   including   its   side   heading.     The   matter   requires   reference   to   an\n\n\nappropriate larger Bench, prays the learned D.G.P.\n\n\n       5.  The question raised is important and serious and calls for a review\n\n\nof the provisions and   precedents.   Liquor is defined in    Section 2(10) of\n\n\nthe Kerala Abkari Act, which  includes spirit of wine, arrack, spirits, wine,\n\n\ntoddy, beer and \"all liquids consisting of or  containing alcohol\".  Arrack is\n\n\nCrl.R.P.No.  2747  of   2006                   4\n\n\n\ndefined under Section 2(6A) of the Act and it means \"  any potable liquor\n\n\nother   than   toddy,   beer,   spirit   of   wine,   wine,   Indian   made   spirit,   foreign\n\n\nliquor   etc...\"   The expressiona   \"export, import, transport and transit\" are\n\n\nall defined under the Act in Section 2(16) - (18)   and transport means to\n\n\nmove from one place in a State  to another place in   the State.  Under the\n\n\nKerala Abkari Act certainly there can be prohibition against manufacture,\n\n\nimport,   export,   transport,   transit,   possession,   storage   sale     etc.   of   any\n\n\nspecified type of liquor and Section 8 of the Abkari Act   reveals the only\n\n\nexample, where an item of liquor,  \"arrack\" has been totally banned in the\n\n\nState of Kerala from 1.4.1996.\n\n\n       6.       Nowhere   does   the   Kerala   Abkari   Act   define   legal   liquor   and\n\n\nillegal  liquor.   That  is not  a concept  known to the  law under the Kerala\n\n\nAbkari Act or the Rules.   Since arrack is prohibited under Section 8, one\n\n\nmay loosely call it an illegal liquor   to mean prohibited liquor   in contra\n\n\ndistinction to other liquors which are non-prohibited liquors.       Except to\n\n\nthe  extent of a blanket prohibition under Section 8, I am unable to place my\n\n\nfinger on  any  liquor  which  can  be said to be  prohibited  or illegal  in the\n\n\nState of Kerala.\n\n\nCrl.R.P.No.  2747  of   2006                5\n\n\n\n       7.  Under Chapter III of the Kerala Abkari Act, stipulations are made\n\n\nabout   import,   export   and   transport     of   liquor   and   under     Chapter   IV\n\n\nprovisions are made about manufacture,     possession and sale   of liquor.\n\n\nChapter V deals with duties, taxes and rentals payable in respect of  liquor\n\n\nand  intoxicating  drugs.    Chapter  VI   deals  with  licenses  etc.    which  can\n\n\nauthorise persons to deal with liquor and intoxicating drugs.   Chapter VII\n\n\ndeals   with   general   provisions     and   Chapter   VIII   deals   with   powers   and\n\n\nduties of officers etc.  Chapter IX containing Sections 55 to  68A deal, inter\n\n\nalia, with penalties and provisions relating to confiscation etc.    Section 55\n\n\ndeals with  consequences for certain acts done in contravention of the Act\n\n\nor   any   Rule   or   Order   made   under   the   Act.     Section   56   deals   with\n\n\nmisconduct by licensees.   Section   57 deals with   adulteration by licensed\n\n\nvendor or manufacturer.  Section 57A deals with adulteration of liquor  or\n\n\nintoxicating   drug   with   noxious   substances.     Section   58     deals   with\n\n\npunishment  for possession of illicit liquor.  It is not necessary to advert to\n\n\nthe various other provisions prescribing punishment.\n\n\n       8.  The concept of illicit liquor is appearing in Section 58 of the Act,\n\n\nthough illicit liquor is not as such defined.  Non-payment of duty, taxes or\n\n\nCrl.R.P.No.  2747  of   2006                   6\n\n\n\nrental payable under the Abkari Act makes the liquor illicit.  If duty, tax or\n\n\nrental has been paid, it must be held to be licit liquor attracting culpability\n\n\nunder Section 58 of the Act.  If such levy has not been paid, it must be held\n\n\nto   be   illicit   liquor   for   the   purpose   of   Section   58,   though   there   is   no\n\n\ndefinition as such of illicit liquor.\n\n\n\n\n       9.  I have adverted to this to find out whether there is concept of legal\n\n\nliquor in contradistinction  to illegal liquor.  It becomes necessary because\n\n\nof the following observations which appear in Sabu   (supra).  I extract the\n\n\nfollowing crucial passages in paragraphs 4 and 5 of the said decision.\n\n\n               4.    xxx   xxxx\n       \"   But, the object of the Act which is to be interpreted also\n       shall  be   looked  into.    If  a  person  sells  or  possesses  illegal\n       liquor   (which   may   lead   to   liquor   tragedies)   or   one\n       manufactures   or   imports   liquor   without   licence   and   proper\n       contract   or   sells   liquor   illegally   without     licence   causing\n       heavy financial burden on the State by avoidance of tax etc.,\n       offence  is very serious and punishment of a minimum fine of\n       Rs. one lakh may be justifiable\".\n\n\n               5. xxx  xxxx\n       \"  Therefore,   the   words,   import,   export,   transport,  transit   or\n       possession  of liquor  read with  heading  to  the  section  show\n       that it is applicable to illegal liquors.\"\n\n\nCrl.R.P.No.  2747  of   2006                  7\n\n\n\n       10.   When   there is no distinction between legal liquors and illegal\n\n\nliquors,  how is the dictum to be applied and enforced?  I find merit in the\n\n\nsubmission   of   the   learned   Director   General   of   Prosecutions   that   the\n\n\ndecision in Sabu (supra)  requires  to be reconsidered.  The learned D.G.P.\n\n\npoints   out     that   the   attempt   made   to   make   use   of   the   side   heading   to\n\n\ninterpret the body of the section is not correct  in as much as  the head note\n\n\ndeals   only   with   \"illegal   import   etc.   of   liquor   and   intoxicating   drugs   in\n\n\nviolation of the Act, Rules and Orders under the Act\" and  does not make\n\n\nimport,   export,   transport,   transit,   manufacture,   etc.   of     illegal   liquor\n\n\npunishable.  The argument does appear to me to be weighty.\n\n\n       11.     The   various   provisions   of   Chapter   IX   make   specific   acts\n\n\npunishable and culpability has no relationship whatsoever to any concept of\n\n\nlegal   liquor   or   illegal   liquor.     I   must   also   immediately   agree   with   the\n\n\nlearned D.G.P. that Section 63 can come into  operation  only if there is no\n\n\nother specific  provision  for punishment  of an offender.   If there be   any\n\n\nstipulation   for   punishment   of   an   offender   under   any   other   provision,\n\n\ncertainly Section 63 which comes into play only when punishment is \"not\n\n\notherwise   provided   for\"   cannot   have   any   application.     If     an   act   is\n\n\nCrl.R.P.No.  2747  of   2006                  8\n\n\n\npunishable under Section 55 of the Kerala Abkari Act, there can certainly\n\n\nbe no resort to the residuary provision under Section 63.\n\n\n       12.         A   Division   Bench   of   this   Court   in  Surendran    v.    Excise\n\n\nInspector<\/a>    (2004   (1)     KLT   404)     considered   the   distinction   between\n\n\npossession of liquor under Section 55(a) and Section 58 of the Abkari Act\n\n\nand the dictum in paragraph 9 of the said decision, extracted below, clearly\n\n\nbrings out the distinction.\n\n\n               \"9.    Thus, it appears that the case shall fall within the\n       ambit   of   S.55(a)   only   when   a   person   is   found   to   be     in\n       possession of liquor in the course of import, export, transport\n       or transit of the goods.  In case the possession is merely with\n       the knowledge of the goods having been illegally imported or\n       manufactured, the case would fall within the mischief of S.58\".\n\n\n       13.  Therefore there appears to be force in the contention that  even if\n\n\nthere   be   possession   incidental   to   import,   export,   transport   or   transit   in\n\n\nviolation of Sections 10 and 13 of the Act.   That will be clearly an instance\n\n\nof possession  incidental to export or import, transport  or transit which is\n\n\nmade punishable under the Act and consequently attracts  culpability under\n\n\nSection 55(a) of the Act.\n\n\n       14.     To   hold     that   toddy   is   legal   liquor   and   therefore   possession\n\n\nCrl.R.P.No.  2747  of   2006                  9\n\n\n\nincidental   to   export,   import,   transport   and   transit   proper   of   toddy   in\n\n\nviolation of the provisions of Sections 10 and 13 would not amount to an\n\n\noffence under Section 55(a) and would be only an offence under Section 63,\n\n\ndoes   not   appear   to   be   acceptable   though   such   a   conclusion   appears   to\n\n\nemanate from the dictum in Sabu.    The learned D.G.P.  points out that on\n\n\ntwo earlier occasions in   Karthikeyan   and  Blan   (supra)   this Court had\n\n\nconsidered  that  question  and had not  made  any distinction  between  legal\n\n\nliquors and illegal liquors when it comes to culpability under Section 55(a).\n\n\nIn the light of the very specific language used in Section 55, which reads:\n\n\n\n               \"Whoever in contravention of this Act or of any rule\n       or order made under this Act\"\n\n\nthe   person   who   indulges   in   the     conduct   of   export,   import,   transport   or\n\n\ntransit, that would be punishable.  It appears to be  impermissible to contend\n\n\nthat   the   contravention   of   the   Act,   Rule   or   Order   would   not   attract\n\n\nculpability  under Section 55 merely for the reason that the liquor concerned\n\n\nis not prohibited (illegal liquors to borrow the language of Sabu) as in the\n\n\ncase of arrack under Section 8.       Section 63, according to me, can apply\n\n\nonly when the act does not fall within the mischief of Section 55 or is not\n\n\nCrl.R.P.No.  2747  of   2006                  10\n\n\n\nmade punishable under any other provisions of the Act, Rule or Order.\n\n\n       15.   In the instant case, there is no contention that transportation of\n\n\ntoddy     without   authority   is   made   punishable   under   any   provision   of   the\n\n\nRules concerned, orders or other provisions of the Act.   The principle that\n\n\nthe special excludes the general cannot be pressed into service.     I repeat\n\n\nthat Section 63 will not be applicable if Section 55 is applicable.  Therefore,\n\n\nSection 55, according to me, must certainly take a case where the permitted\n\n\nliquor (other than arrack, which is prohibited under Section 8 of the Act), is\n\n\nalso involved in the type of violation contemplated under clauses (a) to (i)\n\n\nof Section 55.  Either under Section 55(1) or (2) such a contravention of the\n\n\n\n\nAct or Rule or order in respect of all types of liquor must be punishable\n\n\nunder Section 55.\n\n\n       16.  The learned Judge in Sabu   was concerned about the monstrous\n\n\npunishment  of a minimum fine of Rs. One lakh  and maximum  punishment\n\n\nof imprisonment for 10 years prescribed   for the offence under Section 55\n\n\n(a)   of   the   Act.     It   must   and   does   cause   concern.     That   even   innocuous\n\n\nviolation of the stipulations of Sections 10 and 13 which do not even attract\n\n\nCrl.R.P.No.  2747  of   2006                  11\n\n\n\nthe penal provision under Section 58 must be made punishable with such\n\n\nmonstrous punishment does cause concern.   It may have to be considered\n\n\nwhether   the   law   on   that   aspect   can   be   held   to   be   not   fair,   just   and\n\n\nreasonable,   but   whimsical,   fanciful   and   unreasonable   that   the   provision\n\n\nshould fail on the touchstone of   constitutionality under   Article 21 of the\n\n\nConstitution   as opposed  to the principles of due process.   The possibility\n\n\nof innocuous violation being visited with such monstrous punishment  does\n\n\ncause   anxiety   and   concern   in   my   mind.     But   I   am   unable   to   accept   the\n\n\nreasons given in Sabu to distinguish between legal liquor and illegal liquor\n\n\nas to make Section 55 inapplicable to non-prohibited liquor.   The absence\n\n\nof clarity on the law is creating havoc and misuse of the provisions by the\n\n\nunscrupulous.\n\n\n       17.  I am, in these circumstances, satisfied that the matter deserves to\n\n\nbe considered by a Division Bench of this Court and accordingly make a\n\n\nreference   under   Section   3   of   the   Kerala   High   Court   Act.     Post   the   case\n\n\nbefore a Division Bench.\n\n\n\n\n                                                            (R. BASANT)\n\n\nCrl.R.P.No.  2747  of   2006       12\n\n\n\n                                         Judge\n\n\ntm\n\n\n\n? IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl Rev Pet No. 599 of 2002(C)\n\n\n1. SAJI THOMAS, S\/O.V.J.THOMAS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. RAVEENDRANATH, S\/O.KUNHIKKAVU AMMA,\n                       ...       Respondent\n\n2. STATE OF KERALA, REPRESENTED BY THE\n\n                For Petitioner  :SRI.K.P.DANDAPANI\n\n                For Respondent  :SRI.N.HARIDAS\n\nThe Hon'ble MR. Justice R.BASANT\n\n Dated :24\/08\/2006\n\n O R D E R\n                                R. BASANT, J.\n                         - - - - - - - - - - - - - - - - - - - -\n                         Crl.R.P.No.  599 of   2002\n                        -  - - - -  - - - - - - - - - - - - - - -\n                Dated this the  24th day of   August, 2006\n\n\n                                    O R D E R\n<\/pre>\n
       This  revision petition is directed against the concurrent verdict<\/p>\n
of guilty, conviction and sentence in a prosecution under Section 138<\/p>\n
of the N.I. Act.\n<\/p>\n
       2.     The cheque  is  for an amount of Rs. 90,000\/-.   It bears<\/p>\n
the date 4.11.1995.     According to the complainant the cheque was<\/p>\n
issued for the due discharge of any legally enforcible debt\/liability.\n<\/p>\n
The   cheque   was   dishonoured     on   the   ground     of   insufficiency   of<\/p>\n
funds.     The   notice   of   demand,   though   duly   received   and<\/p>\n
acknowledged,   did   not   evoke   any   response.     The   complainant<\/p>\n
thereupon   came   to   court   after   observing   the   statutory   time   table<\/p>\n
scrupulously.     The   complainant   examined   himself   as   PW1   and<\/p>\n
proved Exts.P1 to P6.  The accused did not adduce any oral evidence.\n<\/p>\n
He   proved   Ext.D1   complaint   filed   by   him   long   after   the<\/p>\n
commencement   of   the   prosecution   before   the   police,   wherein   he<\/p>\n
Crl.R.P.No.  599 of   2002                     2<\/span><\/p>\n
complained about misuse of two  cheque leaves lost from his possession.\n<\/p>\n
       3.   The  crux  of the  defence  urged  is  that  there  was no transaction<\/p>\n
between the petitioner and the complainant;  that the cheque was not issued<\/p>\n
for the due discharge of any legally enforcible debt\/liability, that the cheque<\/p>\n
in   question   was   lost   from   the   possession   of   the   petitioner   and   that   the<\/p>\n
complainant,  who  has some  how  come  into  possession  of  the  cheque,  is<\/p>\n
trying to misutilise the same to stake a false and untenable claim.   Except<\/p>\n
production of Ext.D1 no other evidence was adduced.\n<\/p>\n
       4.   The courts below, in these circumstances,   concurrently came to<\/p>\n
the conclusion that   the execution and handing over of the cheque has been<\/p>\n
established satisfactorily.  It was further held that the burden under Section<\/p>\n
139 of the N.I. Act has not been discharged.   Accordingly they   proceeded<\/p>\n
to pass the  impugned  concurrent judgments.\n<\/p>\n
       5.  The counsel  have advanced arguments.  The learned counsel for<\/p>\n
the petitioner assails the impugned verdict of guilty and conviction on three<\/p>\n
grounds.  It is contended first of all that execution and handing over of the<\/p>\n
cheque   have   not  been   established   satisfactorily   and   beyond   doubt.     It   is<\/p>\n
Crl.R.P.No.  599 of   2002                    3<\/span><\/p>\n
secondly contended that, at any rate, the courts below should have held that<\/p>\n
the burden on the accused under Section 139 of the Act has been discharged<\/p>\n
and there is no satisfactory evidence to show that the cheque was issued  for<\/p>\n
the   due   discharge   of   any   legally   enforcible   debt\/liability.     Thirdly   and<\/p>\n
finally it is contended that the sentence imposed is excessive.\n<\/p>\n
       6.  Coming to the first contention, I have no hesitation to agree that<\/p>\n
the burden of proof – execution and handing over of the cheque – is on the<\/p>\n
complainant.     The   complainant   has   got   to   prove   these   allegations   by<\/p>\n
satisfactory evidence beyond doubt.  The presumption under Section 139 of<\/p>\n
the   Act   cannot   be   imported   to   prove   execution   or   handing   over   of   the<\/p>\n
cheque.  The  complainant must establish satisfactorily that the cheque was<\/p>\n
executed   and   handed   over   to   him   by   the   accused   whereupon   only   the<\/p>\n
presumption under Section 139 of the Act can be drawn.\n<\/p>\n
       7.   To prove execution, there can be many methods.   In the instant<\/p>\n
case,     PW1   was   examined   to   prove   execution.     He   asserted   that   the<\/p>\n
signature   was   affixed   by   the   accused   in   his   presence   and   thereafter   the<\/p>\n
cheque   was   handed   over   to   him.     This   assertion   of   PW1   is   not   seen<\/p>\n
Crl.R.P.No.  599 of   2002                   4<\/span><\/p>\n
effectively challenged in the course of cross examination.  PW1 is making a<\/p>\n
statement on oath.  The  burden certainly is on the accused to bring to the<\/p>\n
notice of the court all circumstances which should persuade the court not to<\/p>\n
accept   the   evidence   of   PW1.     Ext.P1   cheque   is   admittedly   written   on   a<\/p>\n
cheque leaf issued to the petitioner by his bank to operate his account.   The<\/p>\n
explanation which the accused has to offer as to how the cheque leaf issued<\/p>\n
to him by his bank travelled from his possession to that of the complainant<\/p>\n
is certainly an important input while considering whether PW1’s evidence<\/p>\n
about execution can be accepted or not.\n<\/p>\n
       8.   It is in this context that we must take note of the eloquent conduct<\/p>\n
of the petitioner when he received the notice of demand which threatened<\/p>\n
him of criminal prosecution on the basis of Ext.P1 cheque issued by him to<\/p>\n
the   complainant.     Surprisingly   and   significantly   the   accused   does   not<\/p>\n
respond to the notice.  For obscure reasons he did not deny at that stage that<\/p>\n
the cheque is not signed by him or that it was not handed over by him to the<\/p>\n
complainant.  This is indeed crucial and vital.  That piece of conduct must<\/p>\n
certainly  weigh with the court while considering  whether  PW1’s evidence<\/p>\n
Crl.R.P.No.  599 of   2002                        5<\/span><\/p>\n
can   be   accepted   or   not.     It   is   of   course   not   the   law   that   guilt   can   be<\/p>\n
presumed and held established against the accused under Section 138 of the<\/p>\n
N.I. Act if the notice of demand is not replied to.  The response to the notice<\/p>\n
of demand is certainly a vital input while considering whether the assertion<\/p>\n
of the complainant on oath can be accepted or not.   It is only an imprudent<\/p>\n
person   of   the   worst   variety   who   will   indulge   in   such   conduct   of   not<\/p>\n
responding  to such a notice of demand.   The court is expected to adopt the<\/p>\n
yardstick of a prudent mind when considering whether  the fact is proved or<\/p>\n
not.  It is only a very imprudent mind which will not give due significance<\/p>\n
and   attach   importance   to   such   conduct   on   the   part   of   the   indictee   not<\/p>\n
responding to the notice threatening criminal prosecution against him.  No<\/p>\n
person with his head on his shoulders is likely to indulge in such artificial,<\/p>\n
improbable and strange conduct.  While considering the acceptability of the<\/p>\n
evidence of PW1 this  indeed is a most crucial circumstance.\n<\/p>\n
        9.  What is the case of the petitioner?  According to him he had lost<\/p>\n
the cheque leaf.  When was the cheque leaf lost?  Under what circumstance<\/p>\n
was the cheque leaf lost?   What is the conduct of the petitioner when he<\/p>\n
Crl.R.P.No.  599 of   2002                   6<\/span><\/p>\n
realised that such cheque leaf was lost?  Is there any conduct congruent to<\/p>\n
lose of such cheque  leaf as alleged by the petitioner?  Is there any conduct<\/p>\n
consistent with the theory of loss of cheque leaf?  It is crucial and vital that<\/p>\n
there is not a single piece of acceptable conduct in which the petitioner is<\/p>\n
shown to have  indulged in if as a matter of fact the cheque leaf were lost<\/p>\n
from his possession.  If it were lost, one would have expected the petitioner,<\/p>\n
himself   an   employee   of   a   Co-operative   Society,   to   atleast   issue   a   stop<\/p>\n
payment   memo.       That   was   not   done.     Of   course,   a   convenient   Bank<\/p>\n
Manager did  attempt to oblige his customer, the petitioner, by stating in the<\/p>\n
course of cross examination  that oral information was given.  It is crucial<\/p>\n
that even the Manager does not say when that oral information was given<\/p>\n
and in respect of which cheque.  If any such oral  information  were  given,<\/p>\n
it   is   extremely   unlikely   that   the   cheque   would   have   been   dishonoured<\/p>\n
except on the ground of stop payment.   The memo of dishonour does not<\/p>\n
significantly reveal such a ground for dishonour at all.\n<\/p>\n
       10.  It is now contended that the signature in the cheque is not that of<\/p>\n
the petitioner.  In the total absence of such an assertion in the  reply to the<\/p>\n
notice  of  demand,  this  case of the  petitioner  deserves  to  be  viewed  with<\/p>\n
Crl.R.P.No.  599 of   2002                       7<\/span><\/p>\n
considerable amount of care and caution, nay suspicion and distrust.   Even<\/p>\n
when he realised that the cheque leaf allegedly lost by him was being put to<\/p>\n
use by an alleged stranger to claim amount from him, he remained  silent.\n<\/p>\n
That conduct is certainly inconsistent with the denial of signature in Ext.P1.\n<\/p>\n
          11.    The   learned  counsel  for   the  petitioner  submits   that  the  courts<\/p>\n
below erred in invoking the jurisdiction under Section 73 of the Evidence<\/p>\n
Act to compare the signatures available in various records.     In the absence<\/p>\n
of  comparison of signature, there is not a semblance of material  to support<\/p>\n
the   denial   of   signature.     I   must   note   that   there   is   no   specific   denial   of<\/p>\n
signature at any point of time.    When examined under Section 313 Cr.P.C.\n<\/p>\n
the accused could not    muster sufficient courage to deny his signature.    A<\/p>\n
careful   perusal   of   S.   313   statement   shows   that   the   petitioner   had   no<\/p>\n
intention  to deny his signature appearing in Ext.P1 with courage before a<\/p>\n
court.\n<\/p>\n
          12.       The counsel then contends that PW2, the bank Manager, has<\/p>\n
stated that the signature does not tally.  It is true that PW2 was summoned<\/p>\n
as a witness for the complainant.  The dishonour memo did not at all show<\/p>\n
Crl.R.P.No.  599 of   2002                    8<\/span><\/p>\n
that the signature in Ext.P1 was in any way inconsistent with the specimen<\/p>\n
signature.   A   complacent   complainant (or his counsel) ventured to put a<\/p>\n
question  during  chief examination,   armed with the   fact that there is no<\/p>\n
endorsement on the memo of dishonour that the signatures vary, whether<\/p>\n
the signature in Ext.P1 cheque and Ext.P6 specimen signature card do not<\/p>\n
tally.  PW2 had stated that the signatures do not tally.  It is significant that<\/p>\n
in   the   memo   of   dishonour   such   an   endorsement   is   not   there.     The<\/p>\n
convenient   and     specious   assertion   by   PW2   that   the   signature   in   Ext.P1<\/p>\n
does   not   tally   with     that   in   Ext.P6   cannot     deliver   the   petitioner   any<\/p>\n
advantage.\n<\/p>\n
       13.     The   story   does   not   end   there.     Even   though   the   cheque   was<\/p>\n
dishonoured   on   7.11.1995   and   the   petitioner   was   immediately   thereafter<\/p>\n
informed of the same, no complaint whatsoever was made before any one to<\/p>\n
complain about the misuse of the cheque and forgery by PW1.       Realising<\/p>\n
that this piece of conduct may be obviously commended upon by the court,<\/p>\n
we find a convenient Ext.D1 being pressed into service.   It bears the date<\/p>\n
12.8.1997.    I  am   not  even   on  the  delay  in   submitting  Ext.D1.    An   alert<\/p>\n
Crl.R.P.No.  599 of   2002                    9<\/span><\/p>\n
reading   of   Ext.D1   conveys   that   even   in   Ext.D1   the   petitioner   did   not<\/p>\n
muster   courage to deny the signature in Ext.P1.   That is certainly crucial<\/p>\n
and vital.\n<\/p>\n
       14.  The learned counsel for the respondent\/complainant submits that<\/p>\n
the petitioner   by his essential persuasion is not a trustworthy person.  He<\/p>\n
wants to rely on   the opinion given by an expert in another case, wherein<\/p>\n
the   expert   has   opined   that   the   petitioner   is   one   who     camouflages     his<\/p>\n
signatures.   I shall eschew that circumstance altogether while  considering<\/p>\n
the   question.     The   accused   points   out   that   there   is   admission   regarding<\/p>\n
dissimilarity of signature  in Ext.P1 with various other admitted signatures.\n<\/p>\n
Dissimilarity  in a signature  is not certainly synonymous with disproof of<\/p>\n
the   signature.     It   would   be   incorrect   to   assume   that   a     skillful     and<\/p>\n
recalcitrant     indictee   can   avoid   culpable   consequences   by   bringing   in<\/p>\n
dissimilarity in the various signatures affixed by him.  That certainly is not<\/p>\n
the law.  The proof of execution does not  merely depend on  similarity or<\/p>\n
otherwise of the signatures affixed.         Even   assuming   that there   are<\/p>\n
dissimilarities   the<\/p>\n
Crl.R.P.No.  599 of   2002                10<\/span><\/p>\n
conclusion appears to be inevitable that the cheque has been duly executed<\/p>\n
and handed over to the complainant.\n<\/p>\n
       15.   Section 3 of the Evidence Act, when it defines the expression<\/p>\n
`proof’ imports the standards of a prudent man.   The court is expected to<\/p>\n
function  and discharge its duties as a prudent man while considering  the<\/p>\n
evidence to satisfy whether the fact is proved or not.  A prudent man does<\/p>\n
not  only read the lines, he must have the intelligence  to read between the<\/p>\n
lines too.  So construed, according to me, the evidence establishes beyond<\/p>\n
the   shadow   of   doubt   that   the   evidence   of   PW1   can   be   accepted   and<\/p>\n
execution of Ext.P1 has been established  satisfactorily.  Not a semblance of<\/p>\n
doubt    disturbs the judicial  conscience    in coming to  the  conclusion  that<\/p>\n
execution and handing over of the cheque stand proved by the evidence of<\/p>\n
PW1, which is   fortified by various circumstances that have already been<\/p>\n
referred to.  The challenge raised on the first ground  must and does fail in<\/p>\n
these circumstances.\n<\/p>\n
       16.   Execution and handing   over having been proved, certainly the<\/p>\n
presumption under Section 139 of the N.I.Act arises. It is not the obligation,<\/p>\n
it   has   been   repeated   many   times   by   courts,  on  the  complainant  in<\/p>\n
Crl.R.P.No.  599 of   2002                   11<\/span><\/p>\n
a  prosecution under Sec. 138 of the N.I. Act to  independently establish the<\/p>\n
original   transaction   or   the   original   consideration   to   discharge   which   the<\/p>\n
cheque had been issued.  That is why the Legislature has carefully enacted<\/p>\n
Section 139,   where there is a presumption   in favour of the complainant<\/p>\n
and  against  the  accused.    The burden  to  rebut  the  presumption  is on  the<\/p>\n
petitioner.  Until  that burden is discharged,  it is not necessary for the court<\/p>\n
to look for any primary evidence about the transaction or consideration.  Of<\/p>\n
course, as held in Hiten P. Dalal  v.   Bratindranath Banerjee   (AIR<\/a> 2001<\/p>\n
SC 3897), Section 139 enacts a presumption of law and to rebut such law it<\/p>\n
is not merely sufficient to generate fanciful doubts  in the mind of the court.\n<\/p>\n
In Narayana Menon  v.   State of Kerala  (2006 (3) KLT 404 (SC) it has<\/p>\n
been clarified   that the burden on the accused to rebut the presumption is<\/p>\n
only   akin   to   that   of   a   litigant   in   a   civil   case   to   prove   his   case.\n<\/p>\n
Preponderances   of   probabilities   and   possibilities   is   the   yardstick   that   is<\/p>\n
expected of a civil litigant and hence for an accused who attempts to rebut<\/p>\n
the presumption under Section 139 no fanciful possibility, but a practical<\/p>\n
probability which the court finds to be acceptable adopting the  yardstick of<\/p>\n
Crl.R.P.No.  599 of   2002                     12<\/span><\/p>\n
a   prudent     mind   under   Section   3     of   the   Act     has   to   be   established   to<\/p>\n
successfully discharge his burden under Section 139.       We will now see<\/p>\n
whether that burden has been discharged.\n<\/p>\n
        17.     Except   to   pick   holes   in     the   case     of   the   complainant,   no<\/p>\n
comprehensive attempt is made by the accused.  The complainant asserted<\/p>\n
that   he   knows   the   accused   and   his   father   also   and   that   there   has   been<\/p>\n
association with them  for some period of time.  Significantly in the course<\/p>\n
of   cross   examination   this   assertion   is   not   disputed   or   denied.     It   is<\/p>\n
contended   that   the   source   of   the   complainant   to   advance   the   amount   of<\/p>\n
Rs.90,000\/- has not been established.   It is further contended that there is<\/p>\n
difference of one day,  as to whether the cheque  was   given on the same<\/p>\n
evening   of   the   demand   or   the   next   day,   between   the   evidence     in   chief<\/p>\n
examination  and  cross  examination.    It is  contended  that  no  witness  has<\/p>\n
been examined though they were stated to be present to prove the original<\/p>\n
transaction.   These, according  to me,   are   not sufficient to persuade any<\/p>\n
prudent mind to conclude that the burden on the petitioner under Section<\/p>\n
139   of   the   Act   has   been   discharged.         In   these   circumstances   it   must<\/p>\n
Crl.R.P.No.  599 of   2002                  13<\/span><\/p>\n
certainly  be held that the petitioner  has not succeeded  in discharging  the<\/p>\n
burden on him under Section 139 of the Act to rebut the presumption that<\/p>\n
the  cheque  was not    issued  for the  due  discharge  of a legally  enforcible<\/p>\n
debt\/liability.\n<\/p>\n
       18.     No other contentions are raised on merits.     I am satisfied that<\/p>\n
the   challenge  against  the   verdict   of   guilty   and  conviction   must,   in  these<\/p>\n
circumstances, fails.\n<\/p>\n
       19.   We now come to the question of sentence.   The petitioner now<\/p>\n
faces a sentence of S.I. for a period of three months and to pay a fine of<\/p>\n
Rs.5,000\/- and in default to undergo S.I. for a period of one month.  I have<\/p>\n
already   adverted   to   the  principles   governing   imposition   of   sentence   in   a<\/p>\n
prosecution under Section 138 of the N.I. Act in the decision in Anilkumar<\/p>\n
v.   Shammy<\/a>    (2002 (3) KLT 852).   In the facts and circumstances of the<\/p>\n
case, I   do   not find   any     compelling reasons – nay except the unworthy<\/p>\n
defence which the petitioner has taken up in this case, which can persuade<\/p>\n
this court to  insist on  imposition of any deterrent substantive sentence of<\/p>\n
Crl.R.P.No.  599 of   2002                   14<\/span><\/p>\n
imprisonment   on   the   petitioner.     I   take   a   lenient   view   and   hold   that<\/p>\n
notwithstanding such unworthy conduct, the  petitioner does not deserve to<\/p>\n
be incarcerated in prison for the indiscretion committed by him, provided<\/p>\n
he       makes       amends       to       adequately       compensate       the       victim.\n<\/p>\n
Subject<\/p>\n
to   the   compulsion  of  ensuring  adequate  and  just  compensation  to  the<\/p>\n
victim\/complainant,     leniency  can be shown to the petitioner,   who   has<\/p>\n
been compelled to wait from 1995  and to fight three rounds of legal battle<\/p>\n
for the redressal of  his  genuine grievances.    The challenge raised on the<\/p>\n
question of sentence  can succeed only  to the above limited extent.\n<\/p>\n
       20.  In the result:\n<\/p>\n
       (a)  This revision petition is allowed in part.\n<\/p>\n
       (b)   The impugned verdict of guilty and conviction of the petitioner<\/p>\n
under Section 138 of the N.I. Act  are upheld.\n<\/p>\n
       )     But   the   sentence   imposed   is   modified   and   reduced.     In<\/p>\n
Crl.R.P.No.  599 of   2002                  15<\/span><\/p>\n
supersession of the  sentence imposed on the petitioner by the courts below,<\/p>\n
he is sentenced  to undergo imprisonment  till rising of court.   He is further<\/p>\n
directed   under Section 357(3) Cr.P.C. to pay an  amount  of Rs.1,35,000\/-\n<\/p>\n
(Rupees   one   lakh   thirty     five   thousand   only)     as   compensation     and   in<\/p>\n
default to undergo S.I. for a period of three months.  If realised  the entire<\/p>\n
amount shall be released to the complainant.\n<\/p>\n
       9.   The petitioner shall appear   before the learned Magistrate on or<\/p>\n
before 31.10.2006 to serve the modified sentence hereby imposed.       The<\/p>\n
sentence  shall not  be executed till that date.    If the petitioner does   not so<\/p>\n
appear, the learned Magistrate shall thereafter   proceed to take  necessary<\/p>\n
steps  to execute the modified sentence hereby imposed.\n<\/p>\n
                                                          (R. BASANT)
\n                                                                Judge<\/p>\n
tm<\/p>\n
Crl.R.P.No.  599 of   2002            16<\/span><\/p>\n
                                                         R. BASANT, J.\n<\/p>\n
                                                ——————————————\n<\/p>\n
                                                    Crl.R.P.No.   599  of 2002\n<\/p>\n
                                                     ——————————————\n<\/p>\n
Crl.R.P.No.  599 of   2002     17<\/span><\/p>\n
                                                O R D E R<\/p>\n
                                             24th August, 2006<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Unknown vs Raveendranath on 24 August, 2006 he Kerala Abkari Act? Is there a conflict between the decisions of the Single Judges in Karthikeyan v. State of Kerala (2000 (3) KLT 639), Balan v. State of Kerala (2002 (3) KLT 161), George Issac v. State of Kerala (2004 (1) KLT 752) and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-231230","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nUnknown vs Raveendranath on 24 August, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/unknown-vs-raveendranath-on-24-august-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Unknown vs Raveendranath on 24 August, 2006 - 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