Ashok Kumar v. S. Sreelekha and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 Crl.Rev.Pet.No. 4113 of 2007() -----------------------------CRA.268/2006 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.706/2004 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ ASHOK KUMAR, S/O.RAGHAVAN NAIR, MADAPPALLIL HOUSE, KADAKKADU P.O., PANDALAM. BY ADV. SRI.VARGHESE PREM RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- 1. MRS. S.SREELEKHA, D/O.GOPINATHAN NAIR, LEKHA BHAVAN, PATTOOR MURI, PATTOOR P.O., NEERANADU. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## -----------------------------------Crl.R.P.No.4113 of 2007 ## ------------------------------------Dated this the 30[th] day of January, 2008 ## 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.1,05,000/-. It bears the date 21.12.03. The petitioner, after appellate modification, now faces a sentence of S.I for a period of three months. There is a further direction to pay an amount of Rs.1,20,000/- as compensation and in default to undergo S.I for a period of 3 months. 2. Signature in the cheque is admitted. That it was handed over by the accused to PW1 is also admitted. Notice of demand though duly received and acknowledged, did not evoke any response. The complainant examined her father and power of attorney holder who was conversant with the transaction as PW1. Exts.P1 to P4 were marked on the side of the complainant. 3. The accused in the course of trial took up a plea that the cheque was not handed over to the complainant for the due discharge of any legally enforcible debt/liability, but it was Crl.R.P.No.4113 of 2007 2 handed over to the father of the complainant who was an employee/manager in a hotel run by the petitioner. That cheque was misutilised by PW1 and he was prosecuting the vexatious complaint in the name of his daughter, the complainant herein. The accused examined Dws 1 & 2 and proved Ext.P1. DW1 is the Assistant Labour Officer who had jurisdiction over the hotel run by the petitioner. He proved Ext.D1, the declaration submitted by the petitioner in which the name of PW1 is shown as the manager of the hotel. DW2 has been examined. The purpose of examining DW2 remains very obscure. However, he spoke of the payment of an amount of Rs.1 lakh which the petitioner made to PW1 when his service were allegedly brought to termination in the hotel. 4. The courts below concurrently came to the 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. The appellate court did, of course, modify the sentence. 5. The petitioner claims to be aggrieved by the impugned judgment. Called upon to explain the nature of challenge, which the petitioner wants to mount against the impugned concurrent Crl.R.P.No.4113 of 2007 3 judgments, the learned counsel for the petitioner reiterates the contentions that were raised before the courts below. 6. It is first of all contended that the cheque was not issued for the due discharge of any legally enforcible debt/liability. We have primarily the evidence of PW1 about the circumstances under which the cheque was handed over by the petitioner to the complainant. PW1 being the father of the complainant claims to have direct knowledge of the transaction between the complainant and the petitioner. The evidence of PW1 is eminently supported by his ability to produce the cheque in question, which is admittedly drawn on a cheque leaf issued to the petitioner by his bank to operate his account. The evidence of PW1 is further eminently supported by the eloquent surprising conduct of the petitioner when he received the notice of demand. On receipt of the notice of demand, the petitioner remained silent and inactive. It is his contention now that the cheque was handed over by him to PW1, his manager, as a signed blank cheque for the purpose of managing his business and the same was misutilised by PW1 in collusion with the complainant. If that version were true, it is elementary to assume that no person with his head on his shoulders is likely to remain silent and inactive on Crl.R.P.No.4113 of 2007 4 receipt of the notice of demand. The conduct/silence and inaction of the petitioner does go a long way to support the oral evidence of PW1. 7. Of course, it has come out from the evidence of PW1 that the petitioner had reported to PW1 that PW1 was a manager of the petitioner. Significantly there is no specific admission by PW1 in any document, that he had so functioned as a paid manager of the petitioner. However, PW1 clearly accepted that he was helping the petitioner to manage his business. That version is supported by Ext.D1 also. Ext.D1 cannot be reckoned as sufficient to jump to the conclusion that PW1 was a paid manager in the employment of the petitioner. 8. I shall assume the worst and accept that PW1 was the manager of the petitioner. Whatever the nomenclature assigned to the relationship between PW1 and the petitioner, the version of the petitioner that a blank signed cheque was handed over to such manager cannot be readily swallowed by a prudent mind. If the laudable commercial morality which the legislature seeks to usher in by introduction of Section 138 of the Negotiable Instruments Act were to prevail among the polity, the courts cannot lightly assume and accept the defence that blank signed Crl.R.P.No.4113 of 2007 5 cheques were handed over with impunity and irresponsibility by the drawer of the cheque to all and sundry. Not that such a defence is impossible, but the burden must rest on the indictee to show on probabilities that such version is acceptable. In the instant case, except to show that PW1 was assisting the petitioner in the management of the shop, there is absolutely no circumstances which can probabilise the sweeping theory that a blank signed cheque was handed over by the petitioner to PW1. PW1 is admittedly a close relative (Chittappan) of PW1. There was nothing unnatural in PW1 offering a helping hand to the petitioner in the conduct of the business and the petitioner describing him as a manager in Ext.D1. All the same, these are not sufficient for a court to safely sail to the conclusion that the theory of handing over of a signed cheque is true. Why was such a cheque handed over ? For what purpose was such handing over done ? Why was entries not made and a blank signed cheque handed over ? These are the questions which the indictee in a case should explain to the satisfaction of the courts. 9. I agree that admission of signature is not synonymous with admission of execution of cheque. But in the attempt to prove execution, proof or admission of signature, does go a Crl.R.P.No.4113 of 2007 6 long way. The evidence of PW1 read along with totality of circumstances in this case, according to me, absolutely sufficient to prove execution. 10. Once execution is proved, a train of presumptions under Sections 118 and 139 flow from such proof of execution. The burden is on the accused to rebut that presumption. In the attempt to rebut that presumption, of course, it is not for the indictee to disprove the case of the complainant nor can it be insisted that the accused must prove his case to hilt or beyond reasonable doubt. But he must prove his case by the yardstick of preponderance of possibilities and probabilities as a litigant in a civil case is bound to do. The cross examination of PW1 and the evidence of Dws 1 and 2 and Ext.D1 falls significantly short of the mark set under Section 3 of the Evidence Act which defines the expression proof. The petitioner has not succeeded in rebutting those. No other contentions are raised on merits also. I am satisfied that the verdict of guilty and conviction only deserve to be upheld. 11. Coming to the question of sentence, I find merit in the prayer for leniency. I have already adverted to the principles governing imposition of sentence in a prosecution under Section Crl.R.P.No.4113 of 2007 7 138 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 subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight two rounds of legal battle by now and to wait from 2003 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 12. 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. 13. 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 to pay an amount of Rs.1,22,500/- 8 ## Crl.R.P.No.4113 of 2007 (Rupees One lakh twenty two thousand five hundred only) as compensation and in default to undergo S.I for a period of 3 months. If realised the entire amount shall be released to the complainant. 14. The petitioner shall have time till 15.03.08 to raise and pay the compensation amount and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. On or before 17.03.08, the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the modified sentence hereby imposed. ## **(R.BASANT, JUDGE)** rtr/-