KIZHAKKE PURAYIL ABBOBACKER v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 Crl.Rev.Pet.No. 3280 of 2004() -----------------------------CRA.391/1998 of SESSIONS COURT, THALASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED. -------------------------------------------------- KIZHAKKE PURAYIL ABBOBACKER, S/O.MUHAMMED KUNHI, NERUVAMBRAM, CHERUTHAZHAM AMSOM, AND DESOM, P.O., SREESTHA, TALIPARAMBA TALUK (KANNUR DISTRICT). BY ADV. SRI.M.V.AMARESAN ## RESPONDENTS/RESPONDENTS/COMPLAINANT -------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. THAMBAN T.V., S/O.KUNHIRAMAN, VILAYAMCODE, CHERUTHAZHAM AMSOM AND DESOM. PUBLIC PROSECUTOR SRI. B. JAYASURYA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. R.P. NO. 3280 OF 2004 = = = = = = = = = = = = = DATED THIS, THE 19TH DAY OF JULY, 2011 ## _**O R D E R**_ Revision petitioner is the accused in C.C. No. 670 of 1995 on the file of the Judicial Magistrate of the First Class, Payyannur. He was prosecuted by the second respondent herein alleging offence under Section 138 of the Negotiable Instruments Act with a plea that on 28.3.1995, the revision petitioner borrowed a sum of Rs. 1,50,000/- from the second respondent for business purpose with an undertaking to repay it on 28.4.1995. To discharge the liability, on 10.6.1995, the revision petitioner issued Ext.P1 cheque dated 15.7.1995 for the said amount. When presented for collection, Ext.P1 was returned dishonoured for insufficient funds along with Ext.P2 memo dated 10.8.1995. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P3, was caused on 18.8.1995. Despite the acknowledgment of notice on 25.8.1995, the liability was not discharged. 2. Responding to the process issued, the revision petitioner entered appearance and pleaded not guilty when the particulars of the offence was **CRL.R.P.3280/2004** 2 read over and explained. Therefore, the revision petitioner was sent for trial. The second respondent was examined as PW.1. Exts. P1 to P5 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 (1)(b) of the Code of Criminal Procedure. Revision petitioner denied the incriminating evidence and further stated that he borrowed a sum of Rs. 75,000/- from one Unnikrishnan and it was returned; but the cheque issued to Unnikrishnan was not returned. Misusing that cheque, the prosecution was launched. The revision petitioner filed a petition to send Ext.P1 cheque for expert opinion to ascertain the identity of the handwriting in Ext.P1. The learned Magistrate found that there was lack of bona fides as it was filed at the fag end of the trial. Consequently, the petition was dismissed. On appraisal of the evidence, the learned Magistrate found against the revision petitioner. Consequently, he was convicted and sentenced to simple imprisonment for ten months. Aggrieved by the conviction and sentence, he preferred Crl. Appeal 391 of 1998 before the Sessions Court, Thalassery. By the impugned judgment dated 12.7.2004, the learned Sessions Judge, while confirming the conviction, reduced the sentence to simple imprisonment for two months. Assailing the legality, correctness and propriety of the above **CRL.R.P.3280/2004** 3 conviction and sentence as reduced in appeal, this revision petition was filed. 3. I have heard Sri. M.V. Amaresan, learned counsel appearing for the revision petitioner. Learned counsel had taken me through the judgments of the courts below as well as the evidence on record. The main argument that he had advanced is that the revision petitioner had denied the execution of Ext.P1. Therefore, the trial court ought to have allowed his application for sending Ext.P1 for expert opinion regarding the handwriting. It was also argued that the second respondent had not examined any independent witness to prove the transaction and also failed to produce the statement of accounts to establish that such amount was withdrawn from the bank by the second respondent to pay to the revision petitioner. Learned counsel had also relied upon the decisions reported in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(4) SCC 54), Lekha v. Manickan (2006 (4) KLT 800), Gopan v. Tonny Varghese (2008 (1) KLT 257), Kamalammal v. mohanan (2006(3) KLT 972), Jose v. Joy (2008 (3) KLT 512), and Bhaskaran Nair v. Mohanan (2009(3) KLT 580). In Lekha’s case (supra) overruling all the objections, the conviction under challenge was sustained after believing the evidence of PW.1 supported by **CRL.R.P.3280/2004** 4 the documents relied upon. The crucial aspect is the credibility of the evidence of PW.1. 4. I shall first deal with the contention of the revision petitioner regarding the declining of the request for sending Ext.P1 for expert opinion. In cross examination, it was put to PW.1 as to who had filled up the cheque. PW.1 had deposed that it was filled up by the revision petitioner. No question was put to PW.1 suggesting that the hand-writing in Ext.P1 was not that of the revision petitioner. Only if the revision petitioner had got a case that the hand writing in Ext.P1 is not that of the revision petitioner, there would arise a dispute regarding the handwriting in Ext.P1. In this case, the evidence of PW.1 regarding the handwriting remains unimpeached. As regard the writings in Ext.P1 there is no dispute. It is pertinent to note that the revision petitioner remained silent after acknowledging the notice demanding discharge of the liability. The silence of the revision petitioner speaks volumes. Had he got a case that Ext.P1 was not issued in favour of the second respondent in discharge of the liability, in the normal course, the revision petitioner would have retorted to the notice. The silence after acknowledging notice only persuades to arrive at an inference against the revision petitioner. If Ext.P1 was not written in **CRL.R.P.3280/2004** 5 his handwriting, such a suggestion would have been put to PW.1, but not. Learned counsel has no case that the revision petitioner had, at any time, with permission of the court, obtained the cheque and verified the handwriting and it was instructed to the defence counsel that the handwriting is not that of the revision petitioner. Therefore, the denial of the handwriting Ext.P1 lacks bonafides. T he petition for sending Ext.P1 for expert opinion at the fag end of the trial, as observed by the trial court, is only to protract the proceedings. The trial court was justified in dismissing the petition. 5. Krishna Janardana Bhat’s (supra) case as well as Joseph's case is relating to different set of facts. In Krishna Janardhana Bhat’s case, the defence was that for smooth business transaction more than one blank cheque was issued to the accused therein and misusing one of the blank cheque the prosecution was launched. The apex court, after analyzing the evidence, arrived at a conclusion that the defence case was probable. In Joseph’s case, the plea was that the cheque in dispute was issued as a security and the liability between the parties was settled as evidenced by Exts.D1 and D1(a) and that in spite of the settlement of the liability, the cheque was not returned and therefore, the accused therein had issued a **CRL.R.P.3280/2004** 6 stop memo to the bank. There was also other criminal cases between the parties as evidenced by Exts.D2 and D3 produced in that case. That decision is entirely on different set of facts. So, the ratio of the above decisions has no application to the case on hand. The other decisions were relied upon by the learned counsel in support of his argument that the accused in a prosecution under Section 138 of the Negotiable Instruments Act need not enter the witness box and he need not adduce any evidence and that the burden is heavy upon the complainant to prove the liability and execution of the cheque. The decision in Kamalamma’s case was also relied upon in support of his argument that there cannot be any presumption of execution by the mere fact that signature was either admitted or established. 6. In the background of the argument and the decisions referred, I had a very careful scrutiny of the evidence of PW.1. PW.1 had given evidence in support of the averments in the complaint regarding liability, execution of Ext.P1, issuance of it in discharge of liability, presenting the same for collection, dishonouring for want of funds and service of notice demanding discharge. The evidence of PW.1 would show that despite the searching cross examination, the credibility of the witness was not at all **CRL.R.P.3280/2004** 7 shaken. Learned counsel for the petitioner, who read the evidence in total, could not point out anything in the cross examination to disbelieve the evidence of PW.1. True that, PW.1 had admitted that at the time of lending money and issuance of cheque, one of his employee was present and that person was not examined. Corroboration to evidence of PW.1 need be searched only if the reliability of the evidence is doubted. Corroboration is not a rule of law. As I mentioned earlier, the revision petitioner has no case that he had sent any reply to the notice demanding discharge of liability. There is also no suggestion to PW.1 that he had fabricated evidence to prosecute the revision petitioner. In cross examination of PW.1 there is no suggestion to PW.1 that PW.1 had no means to lend the amount as averred in the complaint and brought in evidence. Therefore, the non production of statement of accounts has no significance and not at all a reason to disbelieve the evidence of PW.1. Though the revision petitioner has got a case that Ext.P1 cheque was issued to one Unnikrishnan for borrowing a sum of Rs. 75,000/- and it was later repaid, other than the statement, there is no supporting material to show that the defence suggestion is atleast probable. There was no attempt to examine Unnikrishnan. In the event cheque was given to Unnikrishnan as security **CRL.R.P.3280/2004** 8 and despite the discharge of liability, the cheque was not returned, the revision petitioner would have issued stop memo. Failure to issue stop memo also canvasses an inference against the revision petitioner. Such being the evidence on record, I find that the courts below had correctly appreciated the evidence and rightly arrived at a conclusion of guilt. There is no reason at all to disbelieve PW.1 or to doubt the veracity of his evidence. The evidence of PW.1 that Ext.P1 was drawn for valuable consideration and issued in discharge of liability is corroborated by the presumptions u/s 118 and 139 of the Negotiable Instruments Act which remain unrebutted. The result is that there is nothing to suggest that PW.1 got Ext.P1 in any manner other than what was deposed by PW.1. There is nothing to conclude that the courts below anyway erred in appreciating the evidence so as to rectify in revision. Neither any illegality or impropriety is disclosed. The conviction under challenge is unassailable. Taking note of the fact that the dispute arises out of a business transaction that occurred as early as in 1995, I find that the revision petitioner is entitled to a little leniency in sentence. So also, I find that this is a fit case in which the second respondent is to be duly compensated. Therefore, the sentence under challenge requires modification. Having due regard to the facts and **CRL.R.P.3280/2004** 9 circumstances, I find that a sentence of imprisonment till the rising of the court and a fine of Rs. 1,60,000/- would meet the ends of justice. In the result, the revision petition is disposed of as follows: While confirming the conviction, the sentence under challenge is reduced to imprisonment till the rising of the court and a fine of Rs. 1,60,000/- (Rupees one lakh and sixty thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for two months. Out of the fine, if collected, Rs. 1,50,000/- (Rupees one lakh and fifty thousand) shall be paid to the second respondent as compensation. The revision petitioner is granted two months time for remitting the fine. Till then, the bail bond executed by him shall remain in force. P.S. GOPINATHAN, (JUDGE) knc/-