Jaya P. Kumar Damodara Bhavan v. Sherly Prakash and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 24TH DAY OF NOVEMBER 2014/3RD AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 1793 of 2014 ()** **--------------------------------** **AGAINST THE JUDGMENT IN CRA 211/2011 of II ADDL SESSOPMS COURT, , TRIVANDRUM DATED 16-06-2014** **AGAINST THE JUDGMENT IN ST 703/2006 of J.M.F.C.-VIII, TRIVANDRUM DATED 18-03-2011** **----------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED** **-------------------------------** **JAYA P.KUMAR DAMODARA BHAVAN, PERUMKUZHI (PO), AZHOOR VILLAGE THIRUVANANTHAPURAM** **BY ADVS.SRI.GOPAKUMAR R.THALIYAL SRI.S.VENUGOPAL** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **----------------------------** ## **1. SHERLY PRAKASH, GOKULAM , THALAMUKKU, MURUKKUMPUZHA THIRUVANANTHAPURAM.** ## **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031** **R1 BY ADV. SRI.P.A.AHAMMED R1 BY ADV. SRI.THOUFEEK AHAMED R BY PUBLIC PROSECUTOR, SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.RAMAKRISHNAN, J. -------------------------------------Crl.R.P.No.1793 OF 2014 -------------------------------------Dated this the 24[th] day of November, 2014** ## **O R D E R ~~~~~~~** The accused in S.T.No.703/2006 on the file of the Judicial First Class Magistrate Court-VIII, Thiruvananthapuram is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the 1[st] respondent complainant against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.2,50,000/on various occasions and executed a promissory note on 20.8.2004 for the said amount. Thereafter, she did not pay the amount. When demanded, she issued Ext.P1 cheque for Rs.3,10,000/- with date 15.2.2006 drawn on State Bank of Travancore, Perunkuzhi Branch. The cheque when presented was dishonoured for reason 'funds insufficient' evidenced by Ext.P2 dishonour memo and that was intimated to the complainant by her banker vide Ext.P3 intimation. She sent Crl.R.P.No.1793/2014 2 Ext.P4 notice on 16.3.2006 vide Ext.P5 postal receipt and the same was returned with endorsement 'unclaimed' evidenced by Ext.P6 returned notice. She had not paid the amount. So, she had committed the offence under Section 138 of the Act. Hence, the complaint. 3. When the revision petitioner appeared before the court below the particulars of the offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant herself was examined as PW1 and Exts.P1 to P6 were marked on her side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and she denied all the incriminating circumstances brought against her in the complainant's evidence. She had further stated that she had borrowed only Rs.75,000/- on three occasions from one Mini and issued three blank signed cheques to her and one of them was misused and the present complaint was filed. But no evidence was adduced on her side as defence to prove her case. Crl.R.P.No.1793/2014 3 4. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo imprisonment till rising of court and also to pay Rs.3.10 lakhs with interest at the rate of 8% per annum from 15.2.2006 till realisation as compensation under Section 357(3) of the Code with default sentence of three months imprisonment. Aggrieved by the same, the revision petitioner filed Crl.A. 211/2011 before the Sessions Court, Thiruvananthapuram which was made over to II[nd] Additional Sessions court, Thiruvananthapuram for disposal. The learned II[nd] Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and sentence of imprisonment till rising of court, but modified the further sentence by converting the compensation to fine Rs.3,10,000/with default sentence of three months and further direction to pay the fine amount if realised to the complainant as compensation under Section 357(b) of the Code. Aggrieved by the same, the present Revision Petition has been filed by the revision petitioner, accused before the court below. Crl.R.P.No.1793/2014 4 5. Heard both sides. 6. The counsel for the revision petitioner submitted that when an execution of the cheque is denied, the burden is on the complainant to prove the execution which she had not discharged. Further, the case of the accused is more probable than the case of the complainant which has not been properly appreciated by the court below. So, she is entitled to get acquittal. 7. On the other hand, the learned counsel for the 1[st] respondent submitted that the courts below had properly appreciated the evidence and the revision petitioner did not adduce any evidence to prove her case. The notice sent was returned unclaimed also. So, under the circumstances, court below have concurrently found the revision petitioner guilty which does not call for any interference. 8. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.2,50,000/- on several occasions and on 20.8.2004 she executed a promissory note for Rs.2,50,000/- and when the amount was demanded, she had issued Ext.P1 cheque for Rs.3,10,000/- including interest with Crl.R.P.No.1793/2014 5 date 15.2.2006. The case of the revision petitioner was one of total denial. Her case was that she had borrowed Rs.25,000/-, Rs.10,000/- and Rs.40,000/- on three occasions from one Mini and gave three blank signed cheques and misusing one of the cheques, the present complaint was filed. It is true that once the execution of the cheque and the transaction are denied, then it is for the complainant to prove the same in order to get the benefit of presumption under Section 139 of the Act. It is also settled law that the accused need only to prove his case by preponderance of probabilities and no independent evidence need be adduced and the burden is not as heavy as that of the complainant to prove his case beyond reasonable doubt. It is also settled law that mere denial or assertion that the cheque was not issued in discharge of his liability is not sufficient to dislodge the burden cast on the accused under Section 139 of the Act. In order to prove the case of the complainant, the complainant herself was examined as PW1 and she had deposed in support of the case in the complaint. She had categorically stated that the cheque was filled and then signed by the revision petitioner herself in her presence and then handed over the Crl.R.P.No.1793/2014 6 same to her. She had also stated that the son of the accused was also present at the time when the cheque was executed and delivered. Though she was cross examined at length, nothing was brought out to discredit her evidence regarding this aspect. The revision petitioner did not take any steps to send Ext.P1 cheque for expert opinion to disprove the case of the complainant that it was in the handwriting of the revision petitioner. Further notice sent was returned with endorsement 'unclaimed' and she had no case that she will not receive notice in that address. So relying on the decision reported in **Rangappa v. Sreemohan** [2010(2) KLT 682] and also the decision reported in **Damodhar S. Prabhu v. Sayed Babalal. H** [JT 2010(4) SC 457] that if no evidence is adduced on the side of the accused to disprove the burden under Section 139, the court shall attract the statutory presumption that the cheque was issued in discharge of that liability, the courts below have rightly rejected the contentions of the revision petitioner and believed the evidence of PW1 and came to the conclusion that the revision petitioner had borrowed the amount and issued Ext.P1 cheque in discharge of that liability in favour of the Crl.R.P.No.1793/2014 7 complainant and complainant had proved the borrowal and issuance of cheque. Since the notice has been returned unclaimed, the court below also came to the conclusion that there was proper service of notice as contemplated under Section138 of the Act and rightly convicted her for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference. 9. As regards the sentence is concerned, the trial court has sentenced her to undergo imprisonment till the rising of the court and also to pay the cheque amount of Rs.3,10,000/- with interest at the rate of 8% from 15.2.2010 till realisation to the complainant as compensation with default sentence to undergo simple imprisonment for three months under Section 357(3) of the Code. But, the appellate court had though confirmed the order of conviction and sentence of imprisonment till rising of court converted the compensation to fine of Rs.3,10,000/- with default sentence of three months imprisonment with further direction to pay the fine amount if realised to the complainant as compensation under Section 357(1)(b) of the Code. So the appellate court had shown maximum leniency in quantifying the Crl.R.P.No.1793/2014 8 fine amount also though court has power to impose double the cheque amount as fine. So, I don't find any reason to interfere with the sentence imposed also as it appears to be just and proper. 10. While this Court has about the disposal of the case, the counsel for the revision petitioner prayed 10 months time for paying the amount which was opposed by the counsel for the respondent. Considering the fact that the case is of the year 2006 and also considering the amount involved, this Court feels that six months time can be granted to the revision petitioner to pay the amount. The revision petitioner is granted time till 24.5.2015 to pay the amount. Till then, the execution of the sentence is directed to be kept in abeyance. If any civil suit is filed in respect of the same cheque which was issued in lieu of the promissory note mentioned in the complaint, then the amount if any recovered and paid in this proceedings shall be adjusted towards the amount payable in the decree to be passed in the civil suit as contemplated under Section 357(5) of the Code. The amount, if any, deposited as directed by the appellate court or by this Court for suspending the sentence, then that Crl.R.P.No.1793/2014 9 may be given credit with this amount. With the above direction and observations this Revision Petition is dismissed. Sd/- **K.RAMAKRISHANAN, JUDGE.** ps/26/11/2014 //True copy// PA to Judge