{"id":53100,"date":"2010-04-09T00:00:00","date_gmt":"2010-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-devan-vs-c-krishna-menon-on-9-april-2010"},"modified":"2017-06-01T03:11:55","modified_gmt":"2017-05-31T21:41:55","slug":"s-devan-vs-c-krishna-menon-on-9-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-devan-vs-c-krishna-menon-on-9-april-2010","title":{"rendered":"S.Devan vs C.Krishna Menon on 9 April, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
S.Devan vs C.Krishna Menon on 9 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 1188 of 2005()\n\n\n1. S.DEVAN, CINE ARTIST, NO.IV,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. C.KRISHNA MENON, 'SOWPARNIKA',\n                       ...       Respondent\n\n2. STATE OF KERALA REP. BY PUBLIC\n\n                For Petitioner  :SRI.G.JANARDHANA KURUP (SR.)\n\n                For Respondent  :SRI.K.RAMAKUMAR (SR.)\n\nThe Hon'ble MR. Justice R.BASANT\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :09\/04\/2010\n\n O R D E R\n              R.BASANT & M.C. HARI RANI,JJ\n\n       ==============================\n\n       CRL.R.P.NOS.1186, 1187,1188 & 1197 OF 2005\n\n         ============================\n\n         DATED THIS THE 9TH DAY OF APRIL 2010\n\n                          ORDER\n<\/pre>\n
Basant,J.\n<\/p>\n
    i)Does a cheque cease to be a cheque merely because<\/p>\n
    the drawer raises a dispute about the execution of<\/p>\n
    the cheque and the genuineness of the signature in<\/p>\n
    the cheque?\n<\/p>\n
    ii)  Does it cease to be a cheque when a banker<\/p>\n
    constrained to dishonour the cheque of a valued<\/p>\n
    customer    instead  of   returning   it   with the<\/p>\n
    endorsement that there is no sufficient funds<\/p>\n
    includes the reason that the signature differs?<\/p>\n
\n\n    iii) Is an obliging banker making           such an\n\nCRRP.1186\/2005 &\nconnected cases                 -2-\n\n\n\n\n<\/pre>\n
       endorsement to be reckoned as the final arbiter of<\/p>\n
       culpability in a prosecution for the offence under<\/p>\n
       Section 138 of the Negotiable Instruments Act.<\/p>\n
      iv)    Does     not  the  court   have    jurisdictional<\/p>\n
      competence in a prosecution under Section 138 of<\/p>\n
      the Negotiable Instruments Act to ascertain the real<\/p>\n
      reason     for  the    dishonour   of    the    cheque<\/p>\n
      notwithstanding the purported reasons stated by the<\/p>\n
      Banker ?\n<\/p>\n
     v)      Does the decision in Thomas Varghese v.\n<\/p>\n
     P.Jerome [1992 CRI.L.J.380] require or warrant<\/p>\n
     reconsideration?\n<\/p>\n
      vi)    Is there a conflict between the decision in<\/p>\n
      Rejikumar v. Sukumaran<\/a> [2002 KHC 409] and<\/p>\n
      the decision in M.I. Kumaran v. Abdul Karim<\/p>\n
      and another, [2006(1)K.L.D.(Cri)811].\n<\/p>\n
      2.     These interesting questions arise for consideration in<\/p>\n
this revision petition which has come up before us            on a<\/p>\n
reference by a learned single Judge, who appears to have<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -3-\n<\/p>\n
doubted the correctness of the decision in Thomas Varghese<\/p>\n
(Supra).\n<\/p>\n
      3.     We have heard the senior Counsel Sri. G Janardhana<\/p>\n
Kurup for the revision petitioner\/accused and Ms.Saritha David<\/p>\n
Chungath for the respondent\/complainant.     The parties shall be<\/p>\n
referred to in this order         as accused and complainant<\/p>\n
respectively for the sake of easy reference.<\/p>\n
      4.     The facts scenario which is not in dispute can be<\/p>\n
summarised as follows:\n<\/p>\n
      5.     Four cheques each for Rs.5.5 lakhs marked as Ext.P1<\/p>\n
respectively in the four cases which have been disposed of by a<\/p>\n
common judgment are the subject matter of these prosecutions.<\/p>\n
A monetary transaction between the parties is admitted and is<\/p>\n
not disputed. That there is an undischarged liability for the<\/p>\n
accused to pay amounts to the complainant is admitted. That<\/p>\n
the cheques in question are drawn on cheque leaves issued by<\/p>\n
the Banker of the accused to the accused to operate his Bank<\/p>\n
account is again admitted. That the complainant is an affluent<\/p>\n
businessman and the accused is an educated cine artist is also<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -4-\n<\/p>\n
accepted and conceded.         That there was correspondence<\/p>\n
between them about the discharge of the liability and time<\/p>\n
required for discharge of the liability is also admitted. That the<\/p>\n
cheques were successively presented for encashment and were<\/p>\n
dishonoured is admitted.       That the     cheques were finally<\/p>\n
presented for encashment and were dishonoured on 08\/03\/1999<\/p>\n
is also admitted. That all the four cheques were dishonoured on<\/p>\n
08\/03\/1999 on the twin grounds – “signature differs and funds<\/p>\n
insufficient” is again admitted. That the statutory time table has<\/p>\n
been scrupulously followed after that last dishonour is also<\/p>\n
conceded.      That there was no funds available in the account to<\/p>\n
honour the cheque on the date of dishonour (8\/3\/1999) is also<\/p>\n
not disputed. That the accused had come to know of the earlier<\/p>\n
attempts for presentation of the cheque and dishonour of the<\/p>\n
same prior to its final presentation is also conceded. That the<\/p>\n
accused had not taken any steps after coming to know of such<\/p>\n
earlier instances of presentation and dishonour is also not<\/p>\n
disputed.      Till now, no action has been     taken against the<\/p>\n
complainant by the accused for alleged misuse of the cheques<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -5-\n<\/p>\n
and that is also not disputed.\n<\/p>\n
      6.     To the controversy now. The complainant alleged<\/p>\n
that the cheques were issued to him for the due discharge of a<\/p>\n
legally enforceable debt\/liability. According to the complainant,<\/p>\n
the accused owed an amount of Rs.20 lakhs. It was not repaid in<\/p>\n
time. For return of the said amount of Rs.20 lakhs along with<\/p>\n
interest which was fixed at Rs.2 lakhs, four cheques each for<\/p>\n
Rs.5.5 lakhs (total Rs. 22 lakhs) were allegedly issued by the<\/p>\n
accused to the complainant.       Those cheques are marked as<\/p>\n
Ext.P1 (four cheques) in this prosecution.            When the<\/p>\n
complainant presented the same and it was returned on the<\/p>\n
twin grounds referred above, the complainant suspected that the<\/p>\n
accused      had fraudulently affixed a different signature with<\/p>\n
malicious intent to defraud him. The complainant contended<\/p>\n
that notwithstanding the obliging additional reason shown by<\/p>\n
the    banker that “the signature differs” the real reason for<\/p>\n
dishonour was insufficiency of funds.      The accused, on the<\/p>\n
contrary, took up a stand towards the fag end of the trial that<\/p>\n
the cheques were not issued by him to the complainant for the<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -6-\n<\/p>\n
due discharge of any legally enforceable debt\/liability. He took<\/p>\n
a stand during cross examination of PW1 and during 313<\/p>\n
examination that the cheque leaves were fraudulently          and<\/p>\n
clandestinely obtained,    his signatures were    forged in those<\/p>\n
cheques and those cheques were misused and presented for<\/p>\n
encashment before the Banker by the complainant.<\/p>\n
      7. Separate trials commenced. The complainant was<\/p>\n
examined in all the four cases and documents were marked<\/p>\n
separately. At that juncture, it appears, joint trial was ordered.<\/p>\n
The trial continued. The complainant was cross examined in<\/p>\n
one case after the cases were consolidated. Exts.P1 to P4 were<\/p>\n
marked in all the four cases. They are the cheques, memo of<\/p>\n
dishonour, copy of notice and reply notice respectively. Exts.P5,<\/p>\n
P5(a) and P6 were marked in common after the cases were<\/p>\n
consolidated and the consolidated trial proceeded. Exts.D1 to<\/p>\n
D18 were marked by the accused.           No oral evidence was<\/p>\n
adduced by the defence.\n<\/p>\n
      8.     The courts below – the trial court and the appellate<\/p>\n
court, concurrently held that the complainant has succeeded in<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -7-\n<\/p>\n
establishing that the cheques in question were issued by the<\/p>\n
accused to the complainant for the due discharge of a legally<\/p>\n
enforceable debt\/liability. The courts came to the positive<\/p>\n
conclusion that the cheques were signed executed and handed<\/p>\n
over by the accused to the complainant. The courts further<\/p>\n
found that notwithstanding the further reason shown that the<\/p>\n
signature in the cheques differ, the real reason was insufficiency<\/p>\n
of funds. The courts further held that the statutory time table has<\/p>\n
been scrupulously followed by the complainant. In these<\/p>\n
circumstances,     the   courts  proceeded   to   hold    that  the<\/p>\n
complainant has succeeded in establishing all ingredients of the<\/p>\n
offence under Section 138 of the Negotiable Instruments Act in<\/p>\n
all the four cases. Accordingly, the courts below proceeded to<\/p>\n
pass the impugned judgments.\n<\/p>\n
      9.     Before us, the concurrent verdict of guilty, conviction<\/p>\n
and sentence are assailed on various grounds. We may, at the<\/p>\n
outset, attempt to specify the grounds of challenge. They are:<\/p>\n
        1.The finding of fact that the cheques were written,<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -8-\n<\/p>\n<\/p>\n
          signed and handed over by the accused to the<\/p>\n
          complainant     warrants    interference  invoking<\/p>\n
          revisional jurisdiction of superintendence and<\/p>\n
          correction.<\/p>\n
          2.The courts below erred in invoking the power<\/p>\n
          under Section 73 of the Evidence Act to compare<\/p>\n
          the signatures in Ext.P1 cheques with other<\/p>\n
          admitted signatures.\n<\/p><\/blockquote>\n
          3. The courts below erred in coming to the conclusion<\/p>\n
          that the cheques were issued for the due discharge of a<\/p>\n
          legally enforceable debt\/liability.<\/p>\n<\/blockquote>\n
          4. The courts below ought to have held that when<\/p>\n
          dishonour by the banker was not on one of the two<\/p>\n
          grounds referred to in Section 138 of the<\/p>\n
          Negotiable    Instruments    Act,  no   prosecution<\/p>\n
          whatsoever can lie against the drawer of the<\/p>\n
          cheque.<\/p><\/blockquote>\n
          5. The complainant        having chosen to make<\/p>\n
          allegations of the offence punishable under Section<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -9-\n<\/p>\n<\/p>\n
          420 I.P.C. in the complaint against the accused,<\/p>\n
          this  prosecution   under   Section    138   of  the<\/p>\n
          Negotiable   Instruments     Act   is   legally  not<\/p>\n
          maintainable.\n<\/p><\/blockquote>\n
          6. The courts below should have held that the<\/p>\n
          prosecution is barred by limitation inasmuch as notice of<\/p>\n
          demand had not been issued within the period<\/p>\n
          stipulated from the date of     first  dishonour on the<\/p>\n
          ground, inter alia that the signature in the cheques<\/p>\n
          differed.\n<\/p><\/blockquote>\n
          7.The sentence imposed is excessive.<\/p><\/blockquote>\n
      10. We      have   been   taken   through    the   oral  and<\/p>\n
documentary evidence available in the case in detail.     We have<\/p>\n
been taken through the complaint, answers given by the accused<\/p>\n
in 313 examination and all other relevant matters. We have<\/p>\n
been taken through the order of reference by the learned single<\/p>\n
Judge also meticulously and in detail.\n<\/p>\n
      11. At the very outset, we must remind ourselves of the<\/p>\n
nature, quality and contours of the jurisdiction of a revisional<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -10-\n<\/p>\n
court. The jurisdiction of revision is essentially the power and<\/p>\n
the duty of superintendence and correction.     In an appropriate<\/p>\n
case where the concurrent findings of fact are grossly incorrect<\/p>\n
and perverse, nothing can stop this court from invoking the<\/p>\n
revisional jurisdiction    of superintendence and correction to<\/p>\n
interfere with such grossly erroneous or perverse findings of<\/p>\n
fact. It is unnecessary to refer to precedents which have been<\/p>\n
copiously      cited at the bar and in the order of reference to<\/p>\n
support the above proposition. The crucial question is whether<\/p>\n
the findings of fact rendered       are so grossly erroneous or<\/p>\n
perverse as to warrant revisional interference. While considering<\/p>\n
this question, no court of revision can afford to ignore the fact<\/p>\n
that normally respect and regard must be given to the findings of<\/p>\n
fact concurrently affirmed by two courts.    The trial court has<\/p>\n
the advantage of seeing the witnesses perform in the witness<\/p>\n
stand before it and that evident advantage which a trial Judge<\/p>\n
has, in the matter of appreciation of evidence, cannot be lost<\/p>\n
sight of.<\/p>\n
\n\nCRRP.1186\/2005 &\nconnected cases                 -11-\n\n\n\n\n<\/pre>\n
      12. Having thus reminded ourselves of the nature, quality<\/p>\n
and contours of the revisional jurisdiction and of the power<\/p>\n
which undoubtedly is available with the revisional court to<\/p>\n
interfere with the finding of fact which are grossly erroneous or<\/p>\n
perverse, we shall now consider the challenge raised on grounds<\/p>\n
1 to 3.\n<\/p>\n
      13. It is again unnecessary to advert to precedents, it is<\/p>\n
by now trite and well established that the burden is on the<\/p>\n
complainant in a prosecution under Section 138 of the N.I.Act to<\/p>\n
prove his case beyond doubt as is expected             in  every<\/p>\n
prosecution for a criminal indictment. In the instant case, we<\/p>\n
have the oral evidence of PWs.1 and 2 about the execution of<\/p>\n
the cheques. The learned counsel for the accused contends that<\/p>\n
the oral evidence of PWs.1 and 2 do not deserve to be accepted<\/p>\n
at all. The counsel argues that PW2 was just a casual witness<\/p>\n
who allegedly happened to be present with the complainant<\/p>\n
when the cheques were allegedly handed over by the accused.<\/p>\n
Primarily, we have the oral evidence of PW1. His oral evidence<\/p>\n
is eminently supported by his ability to produce Ext.P1 cheques<\/p>\n
CRRP.1186\/2005 &
\nconnected cases               -12-\n<\/p>\n
(four in number) which are admittedly drawn on cheque leaves<\/p>\n
issued to the accused by his banker to operate his account. The<\/p>\n
oral evidence of PW1 gets further support and assurance from<\/p>\n
the     admitted  circumstance that there was a        financial<\/p>\n
transaction between the accused and the complainant.     Ext.P5<\/p>\n
as well as Exts.D1 to D17 eloquently declare that the oral<\/p>\n
evidence of PW1 that there was monetary transaction between<\/p>\n
the parties and that some amount remained to be paid by the<\/p>\n
accused to the complainant is correct.     To crown all other<\/p>\n
circumstances is the crucial circumstance that the accused,<\/p>\n
even after admittedly coming to know that cheques were<\/p>\n
presented before his Banker and attempt was made to collect<\/p>\n
amounts by presentation of such cheques remained silent, mute<\/p>\n
and inactive.    Admittedly, even after coming to know that<\/p>\n
Ext.P1 cheques had been presented      once or twice and were<\/p>\n
returned, dishonoured the accused did not take any steps to<\/p>\n
instruct his Banker to stop payment. He did not choose to call<\/p>\n
upon the complainant not to present the cheques. Even after<\/p>\n
coming to know that the cheques had been presented, accused<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -13-\n<\/p>\n
had not raised a little finger against the complainant. According<\/p>\n
to the accused now, the cheques were stolen from his premises.<\/p>\n
His inaction, even after coming to know that the stolen cheques<\/p>\n
were being used to withdraw the amounts from his account, is<\/p>\n
eloquent. All these are circumstances which must weigh with a<\/p>\n
prudent mind while attempting to decide whether the oral<\/p>\n
evidence of PW1 can be accepted or not.\n<\/p>\n
      14. Of course, there is the evidence of PW2 also. The courts<\/p>\n
below did not find any reason to reject and discard the evidence<\/p>\n
of PW2. The question certainly is not whether, we, sitting as an<\/p>\n
original court for appreciation of facts would have chosen to<\/p>\n
place reliance on the oral evidence of PW2 or not. The question<\/p>\n
is whether      the revisional powers of superintendence and<\/p>\n
correction deserve to be invoked to interfere with the findings of<\/p>\n
fact concurrently recorded by the two courts. The courts below<\/p>\n
have chosen to accept and act upon the oral evidence of PW1<\/p>\n
which is entirely supported by the oral evidence of PW2 and we<\/p>\n
find that the courts below have not committed any error<\/p>\n
warranting revisional interference in accepting the testimony<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -14-\n<\/p>\n
and recording such findings of fact. Even if the oral evidence of<\/p>\n
PW2 were eschewed the court below cannot be said to have<\/p>\n
committed any      error warranting   revisional interference in<\/p>\n
choosing to accept and act upon the testimony of PW1, the<\/p>\n
complainant.\n<\/p>\n
      15. The unsubstantiated version of the accused also does<\/p>\n
go a long way to assure the court about the acceptability of the<\/p>\n
oral evidence of PW1. According to the accused, there was a<\/p>\n
business transaction . He does not dispute that he had a liability<\/p>\n
to discharge to the complainant.   This is evident from the fact<\/p>\n
that Ext.P5 is not disputed. Exts.D1 to D17 also confirm that<\/p>\n
fact.\n<\/p>\n
      16. The accused surprisingly has not chosen to specify<\/p>\n
what, if not Rs. 22 lakhs, is the amount, which he is legally<\/p>\n
liable to pay to the complainant. The accused takes a vague and<\/p>\n
evasive stand that there is unspecified liability to be discharged<\/p>\n
but the cheques were not issued by the accused to the<\/p>\n
complainant. The cheque leaves were stolen by the complainant<\/p>\n
and misused in an attempt to siphon out funds of the accused.<\/p>\n
\n\nCRRP.1186\/2005 &\nconnected cases                 -15-\n\n\n\n\nThat is the plea.\n\n<\/pre>\n
      17. A careful reading of Ext.P3 notice of demand and Ext.P4<\/p>\n
reply notice is in this context essential. Ext.P3 is a notice of<\/p>\n
demand issued by the counsel for the complainant on behalf of<\/p>\n
the complainant. Ext.P4 is reply issued by the accused himself to<\/p>\n
the counsel. A total and careful reading of Ext.P4 is essential<\/p>\n
and when so read, no prudent mind can be left with any<\/p>\n
semblance of doubt that the accused did not choose to dispute<\/p>\n
the genuineness of the signatures in Ext.P1 cheques or the fact<\/p>\n
that they were handed over by the accused to the complainant.<\/p>\n
Of course, vague and non specific denials are also raised in<\/p>\n
Ext.P4. The document must and has to be read as a whole and<\/p>\n
when so read crucial indications are available. The accused it is<\/p>\n
crucial did not choose to deny the genuineness of the signatures<\/p>\n
in Ext.P1 cheques. The purpose for which they were handed<\/p>\n
over,    was of course disputed, though the existence of some<\/p>\n
liability was not disputed as such.      The accused took up a<\/p>\n
contention that he has an alias name also. Mohan and Devan are<\/p>\n
two names in which he holds himself out to the world. He sign<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                   -16-\n<\/p>\n
in both names. In fact, Ext. P4 clearly shows that he receives<\/p>\n
cheques and drafts in both names. He maintains this stand in<\/p>\n
Ext.P4 and asserts that he has issued written instruction to his<\/p>\n
bank that he signs as Devan also.       In the four cheques (Ext.P1),<\/p>\n
he has signed as Devan. The complainant in Ext.P3 in the wake<\/p>\n
of dishonour on the ground of “signature differs” also had raised<\/p>\n
an allegation that he had signed differently in the cheques<\/p>\n
maliciously to defraud the complainant. It is in reply to that,<\/p>\n
that the complainant had asserted in Ext.P4 that he used to sign<\/p>\n
in both manner and bank has been informed of such course of<\/p>\n
conduct adopted by him.\n<\/p>\n
      18. In Ext.P4, it is significant that the accused did not raise<\/p>\n
a contention that the cheques were fraudulently, clandestinely<\/p>\n
and in a malafide manner removed by the complainant from the<\/p>\n
possession of the accused. But surprisingly in the course of the<\/p>\n
trial, we find such a case being advanced. Less said about this<\/p>\n
weired contention raised by the accused belatedly towards the<\/p>\n
fag end of the trial, the better. A prudent person cannot for a<\/p>\n
moment accept this bizarre contention advanced by the accused<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                   -17-\n<\/p>\n
towards the later stage of the trial.       Ext.P4, to our mind,<\/p>\n
eloquently conveys that this defence sought to be urged in the<\/p>\n
course of the trial cannot stand scrutiny of a reasonable and<\/p>\n
prudent mind.\n<\/p>\n
      19. The courts below, in an attempt to appreciate the<\/p>\n
evidence of Pws.1 and 2 that the accused had signed the cheques<\/p>\n
in their personal presence, did look into the admitted signatures<\/p>\n
of the accused otherwise available and the signatures in Ext.P1<\/p>\n
cheques.       It is argued that the courts below totally erred in<\/p>\n
resorting to this course. Precedents are relied on.<\/p>\n
      20. We find it unnecessary to refer specifically to Section<\/p>\n
73 of the Evidence Act which undoubtedly clothes a court with<\/p>\n
the requisite powers and the court below cannot be found fault<\/p>\n
with at all for referring to and comparing the admitted<\/p>\n
signatures and the signatures in Ext.P1 in an attempt to<\/p>\n
ascertain whether the oral evidence of PWs.1 and 2 about the<\/p>\n
execution of the cheques can be accepted. It is of course true<\/p>\n
that when there is a serious dispute, courts should not arrogate<\/p>\n
to themselves the power to decide and determine the<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -18-\n<\/p>\n
genuineness of signatures, handwritings and thump impressions<\/p>\n
without expert opinion by its own naked eye comparison. The<\/p>\n
court may be referred to as the expert of experts, but no finding<\/p>\n
of a court should ordinarily rest solely on the comparison made<\/p>\n
by the court under Section 73 of the Evidence Act in the absence<\/p>\n
of evidence of any expert.\n<\/p>\n
      21. That is not the situation    in the facts of the instant<\/p>\n
case. The court did not choose to peruse the documents and<\/p>\n
venture an opinion under Section 73 of the Evidence Act at all.<\/p>\n
Forced to choose between the version of the complainant and<\/p>\n
the stand taken by the accused, the court was obliged to decide<\/p>\n
whether the oral evidence of PW1 and of course PW2 can be<\/p>\n
accepted or not. It is for this purpose that the courts below<\/p>\n
referred to the admitted and disputed signatures and came to<\/p>\n
the conclusion that the oral evidence of PWs.1 and 2 can be<\/p>\n
preferred to the belated stand\/version taken by the accused in<\/p>\n
the course of trial and which was not taken in Ext.P4 notice.<\/p>\n
      22. It is then contended that an application filed by the<\/p>\n
accused to send the cheques to the expert before the appellate<\/p>\n
CRRP.1186\/2005 &
\nconnected cases               -19-\n<\/p>\n
court was not allowed. The appellate court should have invoked<\/p>\n
its power under Section 391 Cr.P.C. to forward the cheques to<\/p>\n
the expert and secure expert opinion, it is contended.    One of<\/p>\n
the   easiest ways to secure protraction of trial is to make a<\/p>\n
request to send the cheques to the expert. Every such request<\/p>\n
will not be automatically and    ritualistically be accepted and<\/p>\n
allowed by a Judge. Sufficient and satisfactory reasons must be<\/p>\n
shown to exist to justify such reference to an expert. In the<\/p>\n
instant case the accused had not made any such request before<\/p>\n
the trial judge. The totality of the circumstances to which we<\/p>\n
have already referred, particularly the fact that there is no<\/p>\n
specific denial of the genuineness of the signatures in Ext.P1 in<\/p>\n
Ext.P4 – nay there is a veiled admission also, does         show<\/p>\n
convincingly that the request to forward the cheques to the<\/p>\n
expert at the appellate stage was not bona fide or acceptable.<\/p>\n
We are unable to agree that the lower (appellate) court has<\/p>\n
committed any error in not forwarding the cheques to the expert.<\/p>\n
That would have been an unnecessary and              meaningless<\/p>\n
exercise, according to us. The mere fact that the Banker had<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -20-\n<\/p>\n
included the reason that the signatures differed (not even that<\/p>\n
the signatures do not appear to be genuine) is, according to us,<\/p>\n
too feeble and unacceptable a reason to persuade us to find<\/p>\n
fault with the appellate court for not invoking such powers under<\/p>\n
Section 391 Cr.P.C.\n<\/p>\n
             23. It is next contended that at any rate it has not<\/p>\n
been established that the cheques had been issued for the due<\/p>\n
discharge of a legally enforceable debt\/liability.      We have<\/p>\n
already concurred with the conclusions of the courts below that<\/p>\n
the cheques were signed, executed and handed over by the<\/p>\n
accused to the complainant. It is not the law at all that in a<\/p>\n
prosecution under Section 138 of the Negotiable Instruments<\/p>\n
Act, the complainant must establish the original cause of action<\/p>\n
in meticulous details.     That is precisely why the presumption<\/p>\n
under Section 139 of the Negotiable Instruments Act has been<\/p>\n
incorporated in addition to the presumption under Section 118 of<\/p>\n
the Evidence Act which was already there. It is unnecessary<\/p>\n
to refer to the various precedents that have been cited at the<\/p>\n
Bar. We need only reiterate that once the signature, execution<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -21-\n<\/p>\n
and handing over of the cheque is satisfactorily proved by the<\/p>\n
evidence by the complainant, presumption under Section 139 of<\/p>\n
the N.I. Act comes into play and the same holds the field until<\/p>\n
the accused discharges the burden on him at least           by the<\/p>\n
inferior    standard  of  preponderance     of  possibilities and<\/p>\n
probabilities as applicable in a civil case.<\/p>\n
      24. Exts.D1 to D17 produced by the complainant<\/p>\n
themselves show that there has been a monetary transaction<\/p>\n
between the parties and there was liability for the accused to the<\/p>\n
complainant. Last trace of doubt, if any on this aspect is sought<\/p>\n
to be set at rest by the complainant by the proof of Ext.P5<\/p>\n
which is not disputed at all. This, therefore, is an eminently fit<\/p>\n
case where the presumption under Section 139 of the N.I. Act<\/p>\n
must come into play . The onus must switch to the accused to<\/p>\n
discharge his burden.\n<\/p>\n
      25. The learned counsel for the accused laboriously<\/p>\n
contends that there has been an inconsistency\/incongruity<\/p>\n
between the precise nature of the liability averred in the<\/p>\n
complaint and the nature of liability which was sought to be<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -22-\n<\/p>\n
proved by evidence in the course of trial. In the notice and in<\/p>\n
the complaint, it was averred that an amount of Rs.20 lakhs had<\/p>\n
been borrowed by the accused from the complainant as a loan.<\/p>\n
But Exts.D1 to D17 as also the evidence tendered in the case<\/p>\n
show that it was not a pure and simple transaction of borrowal of<\/p>\n
money.\n<\/p>\n
      26. This must persuade this Court to throw overboard the<\/p>\n
entire case of the complainant, it is contended.<\/p>\n
      27. It is true that the averments in the notice and the<\/p>\n
complaint did not advert to the details. But the case of the<\/p>\n
complainant is clear. There was a proposal to make a film by<\/p>\n
name Bhadram. This project was sought to be undertaken by the<\/p>\n
parties.     The project did not come through.    There was an<\/p>\n
agreement that for a total amount of Rs.20 lakhs, the project<\/p>\n
shall be taken over by the accused. It is for discharge of this<\/p>\n
liability that this amount of Rs.20 lakhs was agreed to be paid.<\/p>\n
This included the amounts which the complainant had already<\/p>\n
paid to     various persons. The nature of the transaction is now<\/p>\n
clear from the evidence of the complainant (PW1) and<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -23-\n<\/p>\n
Exts.D1 to D17. In any view of the matter, notwithstanding the<\/p>\n
innocuous inconsistency between the real nature of the<\/p>\n
transactions and the pleadings in the complaint and the notice,<\/p>\n
we are unable to agree that the burden on the accused under<\/p>\n
Section 139 of the N.I. Act has been discharged.<\/p>\n
      28. We are in ready agreement that the accused is not<\/p>\n
bound to adduce any defence         evidence. Under Section 315<\/p>\n
Cr.P.C, the non-examination of the accused cannot even be<\/p>\n
commented by the adjudicator. But the burden rests squarely on<\/p>\n
the shoulders of the accused. Once the presumption under<\/p>\n
Section 139 comes into play, that burden, we must hold, has to<\/p>\n
be discharged by the accused.            The alleged innocuous<\/p>\n
incongruity pointed out between the pleadings and the precise<\/p>\n
nature of the transaction proved is not sufficient to discharge the<\/p>\n
burden. We do, in these circumstances, come to the conclusion<\/p>\n
that the finding of the court below that the cheques were signed,<\/p>\n
executed and handed over by the accused to the complainant,<\/p>\n
that they were issued for the due discharge of a legally<\/p>\n
enforceable debt\/liability and that the presumption under<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -24-\n<\/p>\n
Section 139 of the Negotiable Instruments Act has not been<\/p>\n
rebutted by the accused are eminently correct and the same do<\/p>\n
not warrant interference. The challenge on grounds 1 to 3 is<\/p>\n
thus rejected.\n<\/p>\n
      29. We now come to the question of law raised. That is<\/p>\n
the 4th ground of challenge. The learned counsel contends that<\/p>\n
the banker having chosen to dishonour the cheques on the twin<\/p>\n
grounds, i.e. “signatures differ and funds insufficient”, section<\/p>\n
138 of the Negotiable Instruments Act can have no application<\/p>\n
at all.      According to the learned counsel, the Banker’s<\/p>\n
endorsement is of crucial relevance. The cheques having been<\/p>\n
returned for the reason that the signatures differ, the cheques<\/p>\n
cannot be reckoned as cheques at all. In order to be a cheque,<\/p>\n
the instrument must be a Bill of Exchange. In order to be a Bill<\/p>\n
of Exchange, it must bear the signature of the drawer. Inasmuch<\/p>\n
as the Bank has returned the cheques with the endorsement<\/p>\n
that the signature of the drawer differs, the cheques cannot be<\/p>\n
reckoned as cheques and the        consequent dishonour is not<\/p>\n
dishonour of a cheque.   At any rate it is not the dishonour for<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -25-\n<\/p>\n
the reasons contemplated under Section 138 of the Negotiable<\/p>\n
Instruments Act.    Counsel contends that in these circumstances<\/p>\n
the dishonour of the cheques for the reason that the signatures<\/p>\n
differ also cannot attract culpability under Section 138 of the<\/p>\n
Negotiable Instruments Act.\n<\/p>\n
      30. We think that the question has already been concluded<\/p>\n
by binding decisions of courts. The Supreme Court in the<\/p>\n
decisions in Goaplast Pvt.Ltd. v. Chico Ursula D’Souza,<\/a><\/p>\n
[2003(2)K.L.T.16(SC) and N.E.P.C.Micon Ltd. v. Magma<\/p>\n
Leasing Ltd.,A.I.R.1999 S.C.1952.<\/a> has taken the view that<\/p>\n
notwithstanding the fact that where cheques were dishonoured<\/p>\n
for the reasons “stop payment” and “account closed”, it is open<\/p>\n
to the court to come to a finding that the real reason was<\/p>\n
insufficiency of funds and consequently conviction can be<\/p>\n
entered under Section 138 of the Negotiable Instruments Act.<\/p>\n
A Division Bench of this Court in Thomas Varghese (supra)<\/p>\n
has proceeded to observe as follows in paragraph 6:<\/p>\n
                ” 6 From the argument advanced by<\/p>\n
                the learned counsel representing the<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -26-\n<\/p>\n<\/p>\n
                petitioner, it would appear that an<\/p>\n
                offence under S.138 of the Act should<\/p>\n
                depend on the endorsement made by<\/p>\n
                the banker while returning the cheque<\/p>\n
                unpaid, i.e.only when the banker<\/p>\n
                makes    an   endorsement   that  the<\/p>\n
                amount of money       standing to the<\/p>\n
                credit of the account of the drawer is<\/p>\n
                insufficient to honour the cheque or<\/p>\n
                that it exceeds the amount arranged to<\/p>\n
                be paid from that account by an<\/p>\n
                agreement made with that bank can an<\/p>\n
                offence under S.138 of the Act be<\/p>\n
                made out. According to us, such an<\/p>\n
                approach will defeat the very purpose<\/p>\n
                of the enactment. The offence under<\/p>\n
                the Section    cannot depend on the<\/p>\n
                endorsement made by the banker<\/p>\n
                while     returning    the    cheque.\n<\/p><\/blockquote>\n
CRRP.1186\/2005 &
\nconnected cases                  -27-\n<\/p>\n<\/p>\n
                Irrespective of the endorsement made<\/p>\n
                by the banker, if it is established that<\/p>\n
                in fact the cheque was returned unpaid<\/p>\n
                either    because the amount of the<\/p>\n
                money standing to the credit of the<\/p>\n
                account of the drawer is insufficient to<\/p>\n
                honour the cheque or that it exceeds<\/p>\n
                the amount arranged to be paid from<\/p>\n
                that account by an agreement made<\/p>\n
                with that bank, the offence will be<\/p>\n
                established. The endorsement made by<\/p>\n
                the banker while returning the cheque<\/p>\n
                cannot be the decisive factor.”\n<\/p><\/blockquote>\n
                     (emphasis supplied)<\/p>\n<\/blockquote>\n
      31. Though the law has been so stated         clearly in this<\/p>\n
decision, the learned counsel for the petitioner contends that<\/p>\n
this does not represent the correct law. According to          the<\/p>\n
learned counsel, when the Banker returns the cheques for the<\/p>\n
reason that the signatures differ, these principles cannot apply<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -28-\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
and the cheques must be held to be not cheques and culpability<\/p>\n
under Section 138 of the Negotiable Instruments Act cannot be<\/p>\n
attracted. It is contended that in Thomas Varghese (supra),<\/p>\n
the Division Bench had not considered the question as to what<\/p>\n
would happen when the cheques are not cheques at all for the<\/p>\n
reason that the signatures appearing on the cheques are not that<\/p>\n
of the accused.\n<\/p>\n
      32. We have no hesitation to agree straight away that if it is<\/p>\n
proved that the signatures are not genuine and there has been<\/p>\n
no valid execution, the cheques will be no cheques at all and<\/p>\n
consequently culpability under Section 138 of the Negotiable<\/p>\n
Instruments Act will not be attracted. But the crucial question is<\/p>\n
whether that contention can be accepted.       The very important<\/p>\n
question is whether that question can be decided by the court or<\/p>\n
the court must reckon itself as a prisoner of the endorsement<\/p>\n
made by the Banker.\n<\/p>\n
      33. In this context we feel that reference to paragraph 3 of<\/p>\n
M\/s.Dalmia Cement(Bharat) Ltd. v. M\/s.Galaxy Traders and<\/p>\n
Agencies Ltd.,<\/a> [A.I.R.2001 S.C.676]<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -29-\n<\/p>\n<\/p>\n
             “3. The act was enacted and section 138<\/p>\n
     hereof incorporated with a specified object of making<\/p>\n
     a special provision by incorporating a strict liability<\/p>\n
     so far as the cheque, a negotiable instrument, is<\/p>\n
     concerned.       The  law    relating  to   negotiable<\/p>\n
     instrument is the law of commercial world legislated<\/p>\n
     to facilitate the activities in trade and commerce<\/p>\n
     making     provision  of   giving   sanctity  to   the<\/p>\n
     instruments of credit which could be deemed to be<\/p>\n
     convertible into money and easily passable from one<\/p>\n
     person to another.        In the absence of such<\/p>\n
     instruments, including a cheque, the trade and<\/p>\n
     commerce activities, in the present day would, are<\/p>\n
     likely to be adversely affected as it is impracticable<\/p>\n
     for the trading community to carry on with it the bulk<\/p>\n
     of the currency in force. The negotiable instruments<\/p>\n
     are in fact the instruments of credit being convertible<\/p>\n
     on account of legality of being negotiated and are<\/p>\n
     easily passable from one hand to another. To achieve<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -30-\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
     the objectives of the act, the legislature has, in its<\/p>\n
     wisdom, thought it proper to make such provisions in<\/p>\n
     the act for conferring such privileges to the<\/p>\n
     mercantile instruments contemplated under it and<\/p>\n
     provide special penalties and procedure in case the<\/p>\n
     obligations     under  the   instruments     are  not<\/p>\n
     discharged.     The laws relating to the Act are,<\/p>\n
     therefore, required to be interpreted in the light of<\/p>\n
     the objects intended to be achieved by it despite<\/p>\n
     there being deviations from the general law and the<\/p>\n
     procedure provided      for  the   redressal  of the<\/p>\n
     grievances to the litigants.    Efforts to defeat the<\/p>\n
     objectives of law by resorting to innovative measures<\/p>\n
     and methods are to be discouraged, lest it may affect<\/p>\n
     the commercial and mercantile activities in a smooth<\/p>\n
     and      healthy manner,   ultimately  affecting  the<\/p>\n
     economy of the country.”\n<\/p><\/blockquote>\n<\/blockquote>\n
CRRP.1186\/2005 &
\nconnected cases                -31-\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      34. It is common knowledge that a Banker will be<\/p>\n
interested in protecting a valued customer of his. The Banker<\/p>\n
may not readily make an endorsement that the funds are<\/p>\n
insufficient.   Expressions “refer to drawer” etc. are skilfully<\/p>\n
employed by the Banker to avoid inconvenience to a valued<\/p>\n
customer even when funds are insufficient. Culpability under<\/p>\n
Section 138 of the Negotiable Instruments Act cannot obviously<\/p>\n
be left entirely to the Banker who makes the endorsement while<\/p>\n
dishonouring the cheques.      The court in order to effectively<\/p>\n
implement the scheme       under Section 138 of the Negotiable<\/p>\n
Instruments Act must reserve for itself, the power to decide the<\/p>\n
real reason that prompted the banker to dishonour the cheques.<\/p>\n<\/blockquote>\n
The reason given by the banker may be relevant. But it is for<\/p>\n
the court on the basis of the materials available before it come to<\/p>\n
a definite conclusion as to what was the actual and the real<\/p>\n
cause for dishonour. It is in this context that the courts will be<\/p>\n
obliged, notwithstanding the nature of the endorsements made<\/p>\n
by the banker, to go into the question and decide what the real<\/p>\n
cause of dishonour is. We have already come to the conclusion<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -32-\n<\/p>\n
while discussing grounds 1 to 3 that in this case the cheques<\/p>\n
bear the genuine signatures of the accused.              In these<\/p>\n
circumstances, the mere fact that the obliging banker had added<\/p>\n
one more convenient reason cannot be permitted to frustrate<\/p>\n
and stultify    the  working of the legislative scheme      under<\/p>\n
Section 138 of the Negotiable Instruments Act. This contention<\/p>\n
that the endorsement by the banker has to be treated as<\/p>\n
sacrosanct and the court is bound to accept the same cannot be<\/p>\n
accepted at all.\n<\/p>\n
      35. In the order of Reference, we find that the decision of a<\/p>\n
learned single Judge in Rejikumar v. Sukumaran<\/a> [2002 KHC<\/p>\n
409] has been referred to. That was a case where the cheque<\/p>\n
was dishonoured on the ground of insufficiency of funds.<\/p>\n
Notwithstanding such dishonour and notwithstanding the fact<\/p>\n
that notice of demand did not evoke any reply, the learned Judge<\/p>\n
accepted the contention of the accused that the signature in the<\/p>\n
cheque was not genuine or true. There was evidence in that<\/p>\n
case to show that the signature was not genuine or true. It is in<\/p>\n
that context the court observed that where       the cheque was<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -33-\n<\/p>\n
dishonoured on the ground that the signature differ (which<\/p>\n
contention was found to be correct by the court) culpability<\/p>\n
under Section 138 of the Negotiable Instruments Act will not be<\/p>\n
attracted.     That decision cannot and does not lay down any<\/p>\n
proposition contrary to what has been laid down by the Division<\/p>\n
Bench in Thomas Varghese (supra).            We have already<\/p>\n
extracted the relevant passage in Thomas Varghese (supra)<\/p>\n
which shows that irrespective of the reasons assigned by the<\/p>\n
banker, the real reason for the dishonour can be and has to be<\/p>\n
ascertained by the court. That is what happened in Rejikumar<\/p>\n
(supra).       Notwithstanding the fact that the cheque was<\/p>\n
dishonoured on the ground of insufficiency of funds, the court in<\/p>\n
that case held that the real reason for the dishonour must be<\/p>\n
held to be the non genuine signature.       Rejikumar(supra)<\/p>\n
cannot hence help the revision petitioner.<\/p>\n
      36. Our attention has also been drawn to the two decisions<\/p>\n
of    learned single Judges of this Court,      Hon’ble Justice<\/p>\n
K.R.Udayabhanu in M.I.Kumaran v. Abdul Karim and<\/p>\n
another, 2006 (1)KLD 811 and                Hon’ble Mr.Justice<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -34-\n<\/p>\n
M.Sasidharan      Nambiar    in  the   unreported   judgment    in<\/p>\n
Crl.A.No.483\/1999 have held that the dishonour by the banker<\/p>\n
with the       endorsement “signature differs” cannot clinch the<\/p>\n
issue.     Both the learned Judges have chosen to follow the<\/p>\n
decision of the Division Bench in Thomas Varghese (supra).<\/p>\n
In Rejikumar(supra), no reference is seen made to the decision<\/p>\n
in Thomas Varghese (supra) . In any view of the matter, we<\/p>\n
are satisfied that the dictum in     Thomas Varghese (supra)<\/p>\n
covers the issue squarely. We are in complete agreement with<\/p>\n
the said dictum and we find no reason to refer to the question<\/p>\n
to a larger Bench.\n<\/p>\n
      37. We do in these circumstances reiterate the law thus. If<\/p>\n
the signature in the cheque is proved to be not genuine, the<\/p>\n
instrument      cannot be reckoned as a cheque and the same<\/p>\n
cannot attract culpability under Section 138 of the Negotiable<\/p>\n
Instruments Act.      But the decision as to whether the signature<\/p>\n
is genuine and whether the execution is proved will have to be<\/p>\n
taken by a court, the mere fact that the banker returns the<\/p>\n
cheque for the reason that the signature differs is no reason for<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -35-\n<\/p>\n
the court to mechanically swallow that reason. The courts are<\/p>\n
obliged to consider whether the real reason for dishonour is<\/p>\n
insufficiency of funds or not.    We may at the risk of repetition<\/p>\n
proceed to reiterate that if as a matter of fact the signatures are<\/p>\n
not genuine and the court finds so, needless to say    Section 138<\/p>\n
of the N.I. Act would not apply.     But the endorsement by the<\/p>\n
banker is not conclusive. The court will have to ascertain the<\/p>\n
real reason.     The challenge on this ground is in these<\/p>\n
circumstances, rejected.\n<\/p>\n
Ground No.5.\n<\/p>\n
      38. It is contended that the complainant having already<\/p>\n
alleged in the complaint that the accused had cheated him and<\/p>\n
has committed an offence under Section 420 I.P.C. by signing<\/p>\n
differently in Ext.P1 cheques, this prosecution under Section<\/p>\n
138 of the Negotiable Instruments Act would not lie. We are<\/p>\n
unable to accept this contention at all. In fact a careful reading<\/p>\n
of the notice of demand and pleadings of the complainant clearly<\/p>\n
show that the signatures were affixed by the accused in the<\/p>\n
presence of the complainant.      When the Banker returned the<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -36-\n<\/p>\n
same with such endorsement that the signatures differ also, the<\/p>\n
complainant apprehended that the accused must have signed<\/p>\n
differently to defraud him. This in its crux is the allegation. It<\/p>\n
will be totally incorrect to say that the complainant had admitted<\/p>\n
that the signatures were not genuine. Such a specific pleading<\/p>\n
is not available at all. In the facts and circumstance of this case,<\/p>\n
the mere fact that in the notice and in the complaint,          the<\/p>\n
complainant alleged mala fides, fraud and an intention on the<\/p>\n
part of the accused to cheat the complainant, cannot in any way<\/p>\n
militate against the    maintainability of the prosecution under<\/p>\n
Section 138 of the Negotiable Instruments Act.      The challenge<\/p>\n
on the 5th ground also therefore fails.\n<\/p>\n
Ground No.6.\n<\/p>\n
      39. It is contended with the help of the decision of the<\/p>\n
Karnataka       High      Court         in     Nanjundappa       v.\n<\/p>\n
Hanumantharayappa [2008(2)K.L.T.851] that when the<\/p>\n
dishonour is on the ground        of   “account closed” and    “the<\/p>\n
signature differs”, the period of limitation must start running<\/p>\n
from the date of initial presentation. Subsequent presentation<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -37-\n<\/p>\n
cannot give a renewed lease of life for the cause of action,<\/p>\n
contends the learned counsel.\n<\/p>\n
      40. We have gone through the decision in Sadanandan<\/p>\n
Bhadran v. Madhavan Sunil Kumar<\/a> (1998(2) K.L.T. 765<\/p>\n
(S.C) which has clearly held that successive presentation within<\/p>\n
the permissible period of time is justified and can be resorted to.<\/p>\n
The cause of action for prosecution can arise only when a notice<\/p>\n
of demand is issued. Till then within the period permitted by<\/p>\n
Section 138 of the Negotiable Instruments Act, any number of<\/p>\n
re-presentations can be done.      We are unable to accept the<\/p>\n
general statement made in Nanjundappa (supra) that in such<\/p>\n
a case the prosecution must be held to be barred by limitation, if<\/p>\n
notice of demand is not given within the stipulated period from<\/p>\n
the date of the original dishonour of the cheque. In the instant<\/p>\n
case, we find that it is the specific case of the complainant that<\/p>\n
initial dishonour on the twin grounds was conveyed to the<\/p>\n
accused and the accused wanted the complainant to represent<\/p>\n
such cheques for encashment. In any view of the matter, we are<\/p>\n
unable to agree that the mere fact that “signature differs” was<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                -38-\n<\/p>\n
one of the reasons for dishonour of the cheque is sufficient to<\/p>\n
conclude that the period of limitation will start even before the<\/p>\n
cause of action has arisen as per the decision in Sadanandan<\/p>\n
(supra).        We respectfully disagree with the dictum in<\/p>\n
Nanjundappa (supra). The challenge on the sixth ground also<\/p>\n
therefore fails.\n<\/p>\n
      Ground No.7<\/p>\n
      41. The learned counsel for the petitioner contends that the<\/p>\n
sentence imposed is excessive.      Simple imprisonment for a<\/p>\n
period of one month and fine of Rs.6 lakhs is the sentence<\/p>\n
imposed in each case. The learned counsel prays that leniency<\/p>\n
may be shown on the question of sentence and the substantive<\/p>\n
sentence of imprisonment may be avoided.\n<\/p>\n
      42. The cheques in the instant case         bear the date<\/p>\n
10\/9\/1998. A period of about 12 years has elapsed from the date<\/p>\n
of the cheques. The complainant has been compelled to fight<\/p>\n
three rounds of legal battle by now.    The cheques were for an<\/p>\n
amount of Rs.5.5 lakhs each. The complainant has been waiting<\/p>\n
in the queue for justice for the past about 12 years. In the<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                 -39-\n<\/p>\n
decision in Anil Kumar v. Shammy [2002(3)K.L.T.852] one<\/p>\n
of us had adverted to the principles governing the imposition of<\/p>\n
sentence in a prosecution under Section 138 of the Negotiable<\/p>\n
Instruments Act. Section 138 of the Negotiable Instruments Act<\/p>\n
was brought into the statute book in 1988. During the initial<\/p>\n
period of enforcement of this new law, we agree with the learned<\/p>\n
counsel for the petitioner that a deterrent, substantive sentence<\/p>\n
of imprisonment can be avoided. It must be zealously insisted<\/p>\n
that the complainant is adequately compensated. It is submitted<\/p>\n
that the civil court is already seized of the matter and a decree<\/p>\n
as prayed for has been granted in favour of the complainant.<\/p>\n
The amount has not been paid so far, it is submitted. The matter<\/p>\n
is pending in appeal, it is reported.     Taking all the relevant<\/p>\n
circumstances, we are satisfied that leniency can be shown on<\/p>\n
the question of sentence zealously insisting at the same time that<\/p>\n
the complainant is fairly and justly compensated. The judgment<\/p>\n
has been rendered by the Additional Chief Judicial Magistrate<\/p>\n
who has unlimited pecuniary jurisdiction for imposition of fine.<\/p>\n
We are satisfied that the fine amount can be enhanced.<\/p>\n
\n\nCRRP.1186\/2005 &\nconnected cases                   -40-\n\n\n\n\n<\/pre>\n
Direction under Section 357(1) Cr.P.C. can also be modified and<\/p>\n
justice can thus be achieved in the facts and circumstances of<\/p>\n
the case.\n<\/p>\n<\/p>\n
      43. In the result:\n<\/p>\n
      a)     these revision petitions are allowed in part.<\/p>\n
       b)     The impugned verdicts of guilt and convictions<\/p>\n
       of the petitioner in all the four cases under Section<\/p>\n
       138 of the Negotiable Instruments Act are upheld.<\/p>\n
       c)     But the sentence imposed is indulgently<\/p>\n
       modified and reduced. The substantive sentences of<\/p>\n
       imprisonment imposed on the petitioner\/accused in<\/p>\n
       all the cases are set aside. The sentences of fine<\/p>\n
       imposed are modified.\n<\/p>\n
       d)     The revision petitioner is sentenced in all the<\/p>\n
       four cases to pay a fine of Rs.7,50,000\/- (Rupees<\/p>\n
       seven lakhs and fifty thousand only) each and in<\/p>\n
       default    to undergo simple imprisonment for a<\/p>\n
       period of three months each. If the fine amount is<\/p>\n
CRRP.1186\/2005 &
\nconnected cases                  -41-\n<\/p>\n<\/p>\n
       realised, an amount of Rs.7.4 lakhs in each case<\/p>\n
       shall   be     released   to  the   complainant    as<\/p>\n
       compensation under Section 357(1) Cr.P.C. Of this,<\/p>\n
       the amount of Rs.5.5 lakhs each shall be credited to<\/p>\n
       the principal amount due under the cheques. Out of<\/p>\n
       the balance amount, an amount of Rs.1.5 lakhs each<\/p>\n
       shall be credited towards the interest payable. The<\/p>\n
       balance shall be credited as costs and expenses<\/p>\n
       incurred   for the prosecution of these three tier<\/p>\n
       criminal proceedings.    The revision petitioner shall<\/p>\n
       have time till 1\/6\/2010 to make payment and avoid<\/p>\n
       execution of the default sentence. If the fine amount<\/p>\n
       is not paid on or before that date, the courts below<\/p>\n
       shall immediately proceed to execute the default<\/p>\n
       sentence.   Needless to say, the amounts so paid<\/p>\n
       under Section 357(1) Cr.P.C shall be given due<\/p>\n
       credit if the civil Court’s decree is confirmed and<\/p>\n
       attempt is made to execute that decree.<\/p>\n<\/blockquote>\n
CRRP.1186\/2005 &
\nconnected cases                 -42-\n<\/p>\n<\/p>\n
      44. It is submitted that an amount of Rs.10 lakhs is lying in<\/p>\n
deposit before the court below which was deposited by the<\/p>\n
revision petitioner as per interim orders passed by this Court.<\/p>\n
The said amount shall forthwith be released to the complainant.<\/p>\n
                                           Sd\/-\n<\/p>\n
                                    R. BASANT, JUDGE<\/p>\n
                                           Sd\/-\n<\/p>\n
ks.                              M.C. HARI RANI, JUDGE\n\n\n\n                  TRUE COPY\n\n\n\n                       P.S. TO JUDGE\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court S.Devan vs C.Krishna Menon on 9 April, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1188 of 2005() 1. S.DEVAN, CINE ARTIST, NO.IV, … Petitioner Vs 1. C.KRISHNA MENON, ‘SOWPARNIKA’, … Respondent 2. STATE OF KERALA REP. BY PUBLIC For Petitioner :SRI.G.JANARDHANA KURUP (SR.) For Respondent :SRI.K.RAMAKUMAR (SR.) The Hon’ble […]<\/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-53100","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nS.Devan vs C.Krishna Menon on 9 April, 2010 - 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\/s-devan-vs-c-krishna-menon-on-9-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Devan vs C.Krishna Menon on 9 April, 2010 - 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