IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2834 of 2006()
1. YOOSUF, S/O.MOOSA,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. SUCY PETER, W/O.LUCA PETER,
For Petitioner :SRI.V.JOHN SEBASTIAN RALPH
For Respondent :PUBLIC PROSECUTOR
Dated :17/08/2006
O R D E R
R.BASANT, J
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Crl.R.P.No.2834 of 2006
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Dated this the 17th day of August, 2006
ORDER
This revision petition is directed against a concurrent verdict of
guilty, conviction and sentence in a prosecution under Section 138 of
the N.I Act. The cheque is for an amount of Rs.72,000/-. The cheque
when presented was dishonoured on the ground of insufficiency of
funds. Notice of demand, though despatched by prepaid post in the
correct address, was returned unserved. The complainant examined
herself as PW1. Pws 2 & 3 bank officials were also examined. He
proved Exts.P1 to P12. The accused did not adduce any defence
evidence.
2. In the course of cross examination of PW1, no specific and
definite defence was taken up by the petitioner though a suggestion
was made that the cheque lost from the possession of the petitioner
was received by the complainant. This is the only suggestion raised
in the cross examination of PW1 to explain the possession of the
cheque by the complainant. In the course of 313 examination also
except blank denials, no specific stand was taken by the accused, who
only contended that the cheque was issued not for the due discharge
of any legally enforcible debt/liability.
Crl.R.P.No.2834 of 2006 2
3. The courts below in these circumstances came to the
concurrent conclusion that the complainant has succeeded in
establishing all ingredients of the offence punishable under Section
138 of the N.I. Act. Accordingly they proceeded to pass the impugned
concurrent judgments.
4. Called upon to explain the nature of challenge which the
petitioner wants to mount against the impugned concurrent
judgments, the learned counsel for the petitioner advanced a totally
different contention. In para.5 of the Memorandum of Revision, it is
contended that the cheque was not issued for the due discharge of
any legally enforcible debt/liability. But transaction between the
complainant and the accused is admitted. It is contended that the
real transaction was only for Rs.10,000/- and that the cheque was
handed over as a blank signed cheque as security when the parties
entered into the earlier transaction. That blank signed cheque has
been misutilised by the complainant to stake an untenable claim, it is
now urged in the memorandum of revision.
5. The contention is not worthy of acceptance at all. The
contention presently raised is not at all raised in the course of cross
examination of the complainant or in the course of 313 examination of
the accused. The petitioner had adduced no defence evidence also.
The evidence of the complainant coupled with the admission of the
signature made now clearly shows that the evidence of PW1 can
Crl.R.P.No.2834 of 2006 3
safely be accepted. Totally incongruent and contradictory
contentions raised by the petitioner is again one circumstance which
will assure the courts of the acceptability of the oral evidence of PW1.
As admitted now in the Memorandum of Revision, the cheque was
handed over by the accused to the complainant with reference to a
monetary transaction. This considerably takes away importance of
the statement made by PW1 that the name of the payee was written
in the cheque by a person at her request. In view of the statement
now made that the cheque was handed over to the complainant by the
petitioner, the fact that the name of the payee was written by the
complainant or someone at her direction assumes no significance at
all.
6. The evidence of the complainant as PW1 unmistakably
establishes the execution and handing over of the cheque. The
contradictory versions taken by the accused helps the court to accept
the evidence of PW1 without any hesitation. Once execution and
handing over of the cheque are established, the presumption under
Section 139 of the N.I Act arises. No attempt whatsoever was made
to discharge the burden to rebut the presumption. The courts below
in these circumstances, I must hold, were eminently justified in
coming to the conclusion that all ingredients of the offence
punishable under Section 138 of the N.I Act have been established
against the petitioner by the complainant.
Crl.R.P.No.2834 of 2006 4
7. Notice of demand was returned unserved. Significantly
there is not a whisper of a contention that the notice was not sent in
the correct address. It was returned without service. The
complainant must be held to have satisfied the requirement of Section
138 of the N.I Act having “given the notice of demand” to the
petitioner. The learned counsel for the petitioner submits that there
was an application to send the cheque to the handwriting expert.
That petition was not considered favourably by the court, it is
submitted. Signature in the cheque is admitted. The cheque is
written on a cheque leaf issued to the petitioner by his bank to
operate his account. Evidence of PW1 proves execution. Admittedly
the name of the payee was not written in the handwriting of the
petitioner. In these circumstances, I find no valid and tenable reason
for which the cheque should have been sent to the expert. That
application to forward the cheque to the expert was rightly rejected
by the courts below in the circumstances which are revealed in this
case.
8. No other contentions are raised on merits. The counsel
then prays that the sentence imposed is excessive. The petitioner
now faces a sentence of s.i for a period of 2 months. There is a
further direction to pay an amount of Rs.72,000/- and in default to
undergo s.i for a period of 3 months. I find merit in the prayer for
leniency.
Crl.R.P.No.2834 of 2006 5
9. I have already adverted to the principles governing
imposition of sentence in a prosecution under Section 138 of the N.I
Act in the decision reported in Anilkumar v. Shammi [2002(3) KLT
852]. I am satisfied that there are no compelling reasons which
can persuade this Court to insist on imposition of any deterrent
substantive sentence of imprisonment. Leniency can be shown on
the question of sentence, but only subject to the requirement of
adequately and justly compensating the victim, who has been
compelled to fight two rounds of legal battle by now and to wait from
1997 for the redressal of his genuine grievances. The challenge
raised can succeed only to the above extent.
10. In the nature of the relief which I propose to grant, it is
not necessary to wait for issue and return of notice to the respondent.
11. In the result:
a) This Crl.R.P is allowed in part;
b) The impugned verdict of guilty and conviction of the
petitioner under Section 138 of the N.I Act are upheld;
c) But the sentence imposed is modified and reduced. In
supersession of the sentence imposed on the petitioner by the courts
below, he is sentenced to undergo imprisonment till rising of court.
He is further directed under Section 357(3) Cr.P.C to pay a further
amount of Rs.80,000/- (Rupees Eighty Thousand only) as
compensation and in default to undergo S.I for a period of 45 days. If
realised the entire amount shall be released to the complainant.
Crl.R.P.No.2834 of 2006 6
12. The petitioner shall appear before the learned Magistrate
on or before 31.10.2006 to serve the modified sentence hereby
imposed. The sentence shall not be executed till that date. If
the
petitioner does not so appear, the learned Magistrate shall thereafter
proceed to take necessary steps to execute the modified sentence
hereby imposed.
(R.BASANT, JUDGE)
rtr/
Crl.R.P.No.2834 of 2006 7
