Anish P. v. M. Gopalakrishnan & State of Kerala (Crl.Rev.Pet.No. 1413 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939** ## **Crl.Rev.Pet.No. 1413 of 2017 ()** **-------------------------------CRL.A.NO. 181/2015 OF SESSIONS COURT,MANJERI ST.NO. 95/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, MANJERI** **----------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **ANISH.P., AGED 52 YEARS,S/O. AYYAPPAN, RESIDING AT PATTIKATHODI (H), KUTTIPARA, PAYYANAD P.O, MALAPPURAM.** ## **BY ADV. SRI.R.NIKHIL** ## **RESPONDENTS/COMPLAINANT & STATE:** **-------------------------------------------------------------** **1. M.GOPALAKRISHNAN, S/O. GOVINDAN NAIR, RESIDING AT MOOCHITHODI (H), ELANKUR AMSOM, ELANKUR DESOM, ELANKUR P.O, MALAPPURAM DISTRICT -676 122** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.No. 1413 of 2017 ================== Dated this the 28[th] day of November, 2017 ## **O R D E R** The petitioner is accused in S.T.No.95/2012 on the file of the Chief Judicial Magistrate's Court, Manjeri, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1[st] respondent (complainant). The trial court as per the impugned judgment rendered on 15.5.2015 had convicted the petitioner and had sentenced him to undergo simple imprisonment for one year and to pay compensation of Rs.1,00,000/- to the complainant under Sec. 357 (3) of the Cr.P.C. and in default thereof, to undergo simple imprisonment for 3 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.181/2015 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge, Manjeri). The appellate court as per the impugned appellate judgment rendered on 31.10.2017 had upheld the conviction, but modified the substantive sentence to imprisonment till rising of the court and directed to pay fine of Rs.1,00,000/-, on payment of which , the same was ordered to be paid as compensation to the complainant under Sec. 357 (1)(b) of the Cr.P.C. and reduced the default sentence clause to 2 months from 3 months. It is aggrieved by the said findings of both the courts below that the petitioner has preferred the instant revision petition by taking Crl.R.P.1413/17 - : 2 :- recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. Heard Sri.R.Nikhil, learned counsel appearing for the revision petitioner (accused) and Sri.Justin Mathew, learned Prosecutor appearing for R-2 State. In the nature of the order that is proposed to be passed in this petition, notice to R-1 (complainant) will stand dispensed with. 3. The brief of the case of the complainant is to the effect that the complainant and the accused were friends and that the accused had issued Ext.P-1 cheque dated 6.7.2007 for Rs.80,000/- drawn from his account and payable in favour of the complainant, in discharge of the personal loan amount of Rs.80,000/- taken from the complainant and that the cheque when presented resulted in dishonour as per Exts.P-2 and P-3 bank memos dated 9.7.2007 and 17.7.2007. Thereupon, the complainant had issued Ext.P-4 statutory demand notice dated 30.7.2017 under Sec.138 proviso (b) of the N.I. Act calling upon the accused to pay off the amount covered by the cheque within 15 days from the date of the notice. That the said notice sent by registered post was duly received by the accused as per Ext.P-5 postal acknowledgment dated 2.8.2007 and that since the accused had not responded to the same and as the amount was not paid, the complainant after adhering to the requisite procedural formalities, has instituted the abovesaid complaint, which led to the trial. 4. During the trial the complainant has examined himself as Crl.R.P.1413/17 - : 3 :- P.W-1 and marked Exts.P-1 to P-6 documents. The defence has not adduced any oral or documentary evidence. 5. The main defence taken up by the accused to explain how the cheque came to the possession of the complainant was that the accused had lost the cheque. The accused has acknowledged that the cheque has been drawn from his account, but he refused the signature and all other entries therein. However, the accused had not taken any steps to establish the veracity of his plea that all the written entries and the signature in the cheque are not his. Whereas on the other hand, the complainant had boldly taken the stand that all the writings and the signature therein belong to the accused and had filed an application before the trial court to send the said cheque along with specimen signatures and handwritings of the accused to the Forensic Science Laboratory (FSL) for handwriting analysis. Pursuant to the orders of the trial court in that regard, the FSL concerned has submitted Ext.P-6 report dated 19.11.2014 (Regional Forensic Science Laboratory, Thrissur), wherein it has been stated that as on a comparison of the handwritings in the cheque with that of the standard handwritings taken from the accused, it appears that the same broadly correspond to each other. It has also been opined in Ext.P-6 report that the signature in the cheque would broadly tally with the specimen signatures of the accused, which were made available to the expert of the FSL. The trial court found that in view of the provisions contained in Sec. 292(1) of the Cr.P.C., there Crl.R.P.1413/17 - : 4 :- is no necessity to examine the expert, who had given Ext.P-6 report, etc. The learned counsel for the petitioner (accused) would vehemently contend that Ext.P-6 report should not have been relied on by both the courts below inasmuch as the expert was not examined as witness to corroborate the correctness of the said report. ## 6. Sec. 292(1) of the Cr.P.C. provides as follows: _**“Sec. 292: Evidence of officers of the Mint.-** (1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint officer of any Mint or of any Note Printing Press or of any Security Printing Press (including the officer of the Controller of Stamps and Stationery) or of any Forensic Department or Division of Forensic Science Laboratory or any Government Examiner of Questioned Documents or any State Examiner of Questioned Documents, as the case may be, as the Central Government may, by notification, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer is not called as a witness.”_ In the light of the abovesaid provisions contained the Code of Criminal Procedure, 1973, the courts below cannot be found fault with for having placed reliance on Ext.P-6 report even without examining the expert concerned, who had furnished the said report. Moreover, it is also to be noted that in vast majority of such cases, it is the accused, who would insist for sending the cheque along with specimen writings to the FSL for expert handwriting analysis, whereas in the instant case, the accused had not taken up any such effort and it was the complainant, who had boldly ventured to send the cheque for expert analysis. Therefore, if at all the accused wanted to dispute the correctness of the professional scientific opinion given in Ext.P-6, it was certainly open to him to cite the said Crl.R.P.1413/17 - : 5 :- expert as a defence witness and lead evidence in that regard. No such effort in that regard was made by the accused and therefore it is not right and proper for this Court to countenance such an argument coming from the accused regarding the reliability or otherwise of that expert report. In the light of these aspects, this Court is of the opinion that the trial court cannot be found fault with in any manner for placing reliance on the expert opinion. Since the cheque in dispute was found to be drawn from the account of the accused and since the signature therein was also proved to be that of the accused, both the courts below have found that the complainant in this case is entitled to draw the benefit of the statutory presumption under Sec. 138(a) and Sec. 139 of the N.I. Act in view of the legal principles laid down by the Apex Court in the decisions as in _**Rangappa v. Sri Mohan**_ reported in (2010) 11 SCC 441, _**Vasanthakumari v. Vijayakumar**_ , reported in (2015) 8 SCC 378, etc. 7. The argument made by the accused regarding the alleged lack of financial source of the complainant to advance Rs.80,000/- was also repelled by the courts below. It has come out in evidence that both the sons of the accused were working in gulf country and that his source was the money sent by his sons. The courts below found that the said evidence given by P.W-1 is believable and credible, etc. 8. Another argument made by the accused is to the effect that P.W-1 had asserted that his wife was also present at the time of the alleged Crl.R.P.1413/17 - : 6 :- borrowal transaction and that the wife of the complainant has not been examined as prosecution witness, etc. True that the wife of the complainant has not been examined as prosecution witness in this case. But the courts below have found that the evidence tendered by P.W-1 is believable and credible and has found that no probable and credible explanation has been made by the accused to explain as to how cheque has reached in the hands of the complainant. The story about the loss of the cheque was not found to be acceptable to the courts below. The complainant could not establish any materials to show that he had ever reported about the alleged loss of the cheque to the lawful authorities like the Police authorities or the bank authorities concerned, etc. In the light of all these aspects, the courts below cannot be found fault with for coming to the considered conclusion that the petitioner is liable to be convicted for the offence punishable under Sec. 138 of the Negotiable Instruments Act. Since those findings of facts cannot be said to be vitiated by perversity or illegality, this Court is not in a position to interfere with the said considered fact findings, exercising revisional powers conferred on this Court. 9. As regards the sentence, it is seen that though the trial court had imposed substantive sentence of simple imprisonment for one year and compensation of Rs.1 lakh with a default sentence of simple imprisonment for 3 months, the appellate court has reduced the substantive sentence by ordering it to imprisonment till rising of the court. Having regard to the Crl.R.P.1413/17 - : 7 :- fact that Ext.P-1 cheque for Rs.80,000/- was issued as early as on 6.7.2007, the compensation amount of Rs. 1 lakh cannot be said to be excessive, as by now more than 10 years have passed after the issuance and dishonour of the cheque. Therefore, this Court is not in a position to interfere with the substantive sentence or the direction to pay fine of Rs. 1 lakhs. 10. Sri.R.Nikhil, learned counsel appearing for the petitioner submits that in case this Court is so inclined to confirm the conviction and the sentence in this case, this Court may grant time upto 31.5.2018 to the petitioner to directly pay the fine/compensation amount of Rs.1 lakh to the complainant, as the petitioner's daughter's marriage is now fixed to be held in February, 2018. Taking note of this submission, this Court is inclined to grant time upto 31.5.2018 to the petitioner to pay the fine/ compensation amount of Rs.1 lakh directly to the complainant. Accordingly, the following orders and directions are issued: - _(i) The impugned conviction, substantive of imprisonment till rising of the court, fine amount of Rs.R-1 lakhs and the default sentence clause of 2 months simple imprisonment imposed in this case will stand confirmed._ - _(ii) The petitioner is given time till 31.5.2018 to pay the fine/ compensation amount of Rs.1 lakhs directly to the complainant. Upon receiving such payments, the complainant will issue necessary receipts evidencing such payment, in order to enable the accused to present the same before the trial court to satisfy the said court about such payment of the amount made by the petitioner directly to the complainant. Any such payment made by the petitioner will be treated as the said amount has been paid as fine and then disbursed to the complainant to the compensation in terms of Sec. 357(1)(b) of the Cr.P.C._ - _(iii) The petitioner shall personally appear before the trial court at 11 a.m. on any day on or before 31.5.2018 to suffer the imprisonment till rising of the court and to satisfy the said court about the payment of the abovesaid amount directly the complainant._ - _(iv) On default of the petitioner to pay the abovesaid amount as directed above, the petitioner will have to undergo simple imprisonment for two months as ordered_ Crl.R.P.1413/17 - : 8 :- _by the appellate court._ - _(v) Until 31.5.2018 all further coercive steps that may be taken against the petitioner in pursuance of the execution of the impugned sentence in this case will stand deferred._ The Registry will forward a copy of this order to the trial court for information. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge