Andrews Varghese v. P.N. Vijayan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935** ## **Crl.Rev.Pet.No. 1077 of 2003 (C)** **--------------------------------CRL.A. NO.803/2001 OF II ADDITIONAL SESSIONS COURT, ERNAKULAM. CC. NO.342/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MUVATTUPUZHA.** **................** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **ANDREWS VARGHESE, POOVAN HOUSE, COLLEGE ROAD, MUVATTUPUZHA.** ## **BY ADV. SMT.P.V.KOCHUTHRESIA.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **-----------------------------------------------------------------------** **1. P.N. VIJAYAN, PUNATHIL VEEDU, RAMANGALAM KARA, MUVATTUPUZHA.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM.** **R1 BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.BENNY VARGHESE SRI.JIKKU GEORGE JACOB SRI.PRAMOD KOCHUTHOMMEN.E. R2 BY PUBLIC PROSECUTOR MR.LIJU V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **K.HARILAL, J.** = = = = = = = = = = = ## **Crl.R.P.No.1077 of 2003** = = = = = = = = = = = = = = = = Dated this the 25[th] day of July, 2013 ## **O R D E R** The Revision petitioner is the accused in C.C.No.342 of 1998 on the files of the Judicial First Class Magistrate's Court-I, Muvattupuzha. He was prosecuted for the offence punishable under Sec.138 of the Negotiable Instruments Act (for short 'the N.I.Act') on a complaint filed by the 1[st] respondent herein. After trial, the learned Magistrate found the Revision petitioner guilty of the offence punishable under Sec.138 of the N.I.Act and convicted thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a fine of ₹ 5,000/- under Sec.138 of the N.I.Act. In default, to undergo simple imprisonment for another one month. Out of fine amount, 4,000/- shall be paid as compensation to₹ the complainant. Though he had preferred Crl.A.No.803/2001 before the Sessions Judge, Ernakulam, **Crl.R.P.No.1077 of 2003** 2 the appellate court also confirmed the conviction and sentence as such without any interference. This revision petition is filed challenging the concurrent findings of conviction and sentence imposed on the revision petitioner. 2. The case of the complainant is that the accused issued a cheque dated 31/01/1998 for 1,59,000/- in₹ discharge of the debt due from him to the complainant. When he presented the cheque for collection, the same was dishonoured and returned for want of sufficient funds. Though he caused to issue a lawyer's notice and the accused received the same, he did not pay any amount. Thus, the accused committed the offence punishable under Sec.138 of the N.I.Act. 3. In defence, the accused contended that he had borrowed a sum of 10,000/- from the brother-in-law of the₹ complainant and issued a blank signed cheque as security towards repayment of the said amount. There was no debtor-creditor relationship between the complainant and **Crl.R.P.No.1077 of 2003** 3 the accused. 4. To prove the execution and issuance of the cheque, the complainant was examined as PW1 and Exts.P1 to P7 were marked. No evidence either oral or documentary had been adduced by the accused. 5. Going by the judgment, it could be seen that though the accused had denied the transaction and put an alternative contention that he had borrowed 10,000/- from₹ brother-in-law of the complainant and the cheque which was issued to him as a security is misused in this complaint to prosecute the accused. No evidence had been adduced to substantiate that alternative plea. It follows that signature in the cheque is admitted. While cross examining the complainant the accused suggested that the complainant had no financial capacity to raise such an amount. Against that challenge of the sources of income, the complainant had answered that he had cut and removed certain trees from the property and obtained the amount by **Crl.R.P.No.1077 of 2003** 4 selling the trees. Apart from the mere statement that the complainant has no financial capacity, no evidence has been adduced to substantiate the same either by way of cross examining the complainant or by adducing positive evidence. After appreciating the evidence, the trial court found that the complainant had successfully discharged initial burden of proving the execution and issuance of the cheque; whereas the accused miserably failed to rebut the presumption under Sec.118(a) and 139 of the N.I.Act. In **Rangappa v. Mohan** [2010(2) KLT 682 (SC)], the Apex Court held that the presumption under Sec.118(a) and 139 includes the existence of a legally enforceable debt also. Similarly, in **Devan v. Krishna Menon** [2010(2) KLT 397], the Division Bench of this Court held that once the signature, execution and handing over of the cheque is satisfactorily proved by the evidence by the complainant, presumption under Sec.118(a) and 139 of the N.I.Act comes into play and the same holds the field until the accused ## **Crl.R.P.No.1077 of 2003** 5 discharges the burden on him at least by the inferior standard of preponderance of possibilities and probabilities as applicable in a civil case. In **Johnson Scaria v. State of Kerala** [2006(4) KLT 290], this Court held that admission of signature in a cheque and possession of the cheque by the complainant go a long way to prove the issuance of cheque. 6. In view of the above decisions, I find that there is no illegality of impropriety in the findings and I do no find any kind of perversity in the appreciation of evidence from which those findings have been arrived at. 7. Coming to sentence, I find that the sentence imposed on the Revision petitioner is disproportionate with the nature and gravity of the offence. The Supreme Court, in the decision in **Kaushalya Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and **Crl.R.P.No.1077 of 2003** 6 imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in **Vijayan vs. Baby (** 2011(4) KLT 355), the Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 8. In view of the above decisions, I am inclined to reduce and modify the substantive sentence of imprisonment imposed on the Revision petitioner. In supersession of the sentence imposed on the Revision petitioner by the trial court and confirmed by the appellate court, the Revision petitioner is sentenced as follows: i. The Revision petitioner shall undergo simple imprisonment for one day till rising of the court. ii. The Revision petitioner shall pay a fine of ₹1,59,000/- (Rupees One Lakh Fifty Nine Thousand only) **Crl.R.P.No.1077 of 2003** 7 and the same shall be given to the complainant under Sec.357(1)(b) of the Cr.P.C. iii. In default, the Revision petitioner shall undergo simple imprisonment for three months. This revision petition is disposed of accordingly. **K.HARILAL, JUDGE.** ## **Stu** //True copy// P.A to Judge.