G. Mohana Kkurup v. State of Kerala and Prasan nakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934** **Crl.Rev.Pet.No. 1356 of 2006 (D) -------------------------------CRA.252/2002 of ADDL.SESSIONS COURT-I,MAVELIKKARA CC.314/2001 of J.M.F.C-I, HARIPAD** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **G. MOHANA KKURUP, S/O.GOVINDA KURUP, KOLEDATHU VEEDU, KEERIKKADU P.O. KEERIKKADU THEKKUM MURI, KAYAMKULAM.** **BY ADV. SRI.B.RENJITHKUMAR** ## **COMPLAINANT(S)/RESPONDENTS/STATE & COMPLAINANT::** **------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **2. PRASANNAKUMAR,** **SREERAMAJAYAM VEEDU ALSO KNOWN AS PUNNAMOOTTIL KANDALLOOR VADAKKUM MURI, KANDALOOR VILLAGE KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.P.SREEKUMAR BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) BY PUBLIC PROSECUTOR SMT. JASMINE V.H** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 1356 of 2006** ## **========================= Dated this the 12[th] day of October, 2012** ## **ORDER** The challenge in this revision is the concurrent verdict of conviction entered in a case filed under Sec.138 of N.I. Act. The sentence was modified by the appellate court to S.I for one month and to pay Rs.1 lakh, the cheque amount, as compensation to the complainant. 2. The learned counsel for the revision petitioner submits that the courts below failed to take note of the fact that the petitioner had filed a petition before the trial court to summon Soman, Thekkaduthu Kuries, P.O. Kandalloor, from whom PW1 was stated to have obtained money. That summons was returned with the endorsement 'not known'. Therefore, according to the petitioner, the contention that there was one Soman, who was conducting Thekkaduthu Kuries and it was from him Crl.R.P.No.1356/2006 : 2 : the complainant obtained money for lending the same to the petitioner herein cannot be accepted. It is further submitted that since the accused denied the execution of cheque, the burden is entirely on the prosecution to prove the execution of cheque and so even if the accused could not prove the case pleaded by him beyond reasonable doubt that will not come to the rescue of the complainant to get a verdict in his favour. The learned counsel submits that the specific case advanced by the accused is that he had obtained Rs.10,000/- (Rupees ten thousand only) from one Anilkumar (DW1) and at that time a signed blank cheque leaf was given to him and later that cheque leaf was handed over by DW1 to the complainant and based on that document this case has been foisted against the petitioner. 3. Learned counsel for the respondent/ complainant submits that there is no case for the Crl.R.P.No.1356/2006 : 3 : petitioner that the accused is not a man of no means or that he is not having sufficient fund to advance the amount to the accused. The complainant is an Ayurvedic Doctor and he has also given evidence that he was having sufficient money. Therefore, according to the learned counsel for the respondent, even if there is any inconsistency with regard to the obtainment of amount from Soman or any other person for lending the same to the accused, that cannot shift the burden so as to help the accused to discharge the presumption under Sec.139 of N.I. Act. 4. The learned counsel for the petitioner relies upon decisions of Supreme Court in **Kamala v. Vidhyadharan** (2007(3)KLT 561 and also this court in **Bhaskaran Nair v. Mohanan** 2009(2)KLT 897 in support of his submission that it is for the complainant to prove the transaction and that the accused can discharge Crl.R.P.No.1356/2006 : 4 : his burden by preponderance of probabilities. The learned counsel submits that the trial court and the appellate court did not take note of the fact that the accused had taken steps to summon Soman of Thekkaduthu Kuries and since that fact was omitted to be noticed by the courts below there was no proper appreciation of evidence. The learned counsel for the respondent submits that what was stated by PW1 was that one Soman was conducting Chitty by name Thekkaduthu Kuries and it cannot be said that Soman was the Foreman of that Kuri. It is also pointed out that PW1 is not a person engaged in money lending business and the only sin committed by him is that he happened to lend money to the accused, who was known to him earlier believing his words that the money will be repaid. 5. It is also pointed out that though the burden is on the complainant to prove the execution and the Crl.R.P.No.1356/2006 : 5 : lending of money when both sides adduced evidence, the evidence on record has to be weighed and analysed and ultimately the court has to find whether the prosecution has discharged his duty of proving the case. In that process, the case advanced by the accused and the evidence adduced to probabilise the defence case also may have to be gone into. 6. It was not disputed that Ext.P1 was signed by the accused. The name of the complainant (as 'payee') and the amount in words (as 'Rupees one lakh only') and the date were written by the same person. According to PW1 the cheque already up and signed was brought to his house. In other words, PW1 did not see the accused writing or signing, but at the same time, the accused does not dispute the fact that Ext.P1 was signed by him. The case advanced by the accused is that Anilkumar (DW1) had obtained Rs.10,000/- and at that time a signed blank Crl.R.P.No.1356/2006 : 6 : cheque leaf was given to the complainant. It is true that PW1 has stated that Ext.P1 was already written up as regards the amount and it was signed and handed over to him. DW1, who was examined to prove the defence case, has stated that the accused had borrowed Rs.10,000/and when he demanded for the amount a cheque was written up and given to him by the accused and that was handed over by him to the complainant. But on going through Ext.P1, it is seen that the payee's name, the amount and the date '15.05.2000' were written up by the same person at the same time. Only because, the amount in figure was written up in another ink, it cannot be said that Ext.P1 was not executed and handed over by the accused to PW1. 7. The courts below analysed the entire evidence in the correct perspective and held that the case put forward by the defence is improbable and unacceptable Crl.R.P.No.1356/2006 : 7 : and the case advanced by the complainant is more probable, reasonable and acceptable. I find no reason to hold otherwise. The conviction is to be thus confirmed. 8. The learned counsel for the petitioner submits that the sentence may be modified. The appellate court sentenced the petitioner to undergo S.I for one month and to pay Rs.1 lakh as compensation to the complainant. Considering all the aspects, I find that the sentence is to be modified. 9. In the result, this criminal revision petition is disposed of as stated below: The conviction is confirmed. In supersession of the sentence awarded by the court below, the petitioner is sentenced to imprisonment till the rising of the court and to pay Rs.1,10,000/- (Rupees one lakh ten thousand only) as compensation to PW1 the complainant and in default of payment of the same, the petitioner will undergo S.I for Crl.R.P.No.1356/2006 : 8 : three months. Petitioner is granted one month time to pay the amount of compensation and to undergo imprisonment till the rising of the court. Sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge