M.P. VASU v. A.B. SIVADAS and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 Crl.Rev.Pet.No. 4228 of 2007() -----------------------------CRA.401/2005 of I ADDL. SESSIONS COURT, PALAKKAD ST.680/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- M.P.VASU, S/O PONNAN, AGED 43, THAZHATHE VEEDU, MOOSARI THARA, EZAKKAD P.O., PALAKKAD. BY ADV. SRI.R.GIREESH VARMA ## RESPONDENTS: RESPONDENTS/COMPLAINANT ------------------------------------ 1. A.B.SIVADAS, S/O M.K.BALAKRISHNAN, AGED 62, KADUNGATTUKALAM, EZHAKKADU P.O., PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## -----------------------------------Crl.R.P.No.4228 of 2007 ## ------------------------------------Dated this the 16[th] day of January, 2008 ## O R D E R 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 petitioner now faces a sentence of S.I for a period of 3 months. There is a further direction to pay an amount of Rs.20,000/- as compensation and in default to undergo S.I for a period of one month. 2. The cheque is for an amount of Rs.20,000/-. It bears the date 15.12.03. According to the complainant, the cheque was issued for the due discharge of a legally enforcible debt/liability which arose consequent to the borrowal of the said amount by the petitioner from the complainant. The cheque was dishonoured on the ground of insufficiency of funds. Notice of demand was duly issued. It did not evoke any response. The complainant came to court. Consequent to the plea of not guilty raised by the accused, he examined himself as PW1 and proved Exts.P1 to P5. The accused did not adduce any evidence. In the course of trial a contention was raised that the petitioner was an employee Crl.R.P.No.4228 of 2007 2 (Karyastha) of the complainant and that he had kept his valuable documents in the house of the complainant. The complainant had - that is the obvious suggestion, stealthily removed the cheque leaf which was kept in his house, had forged the signature in the cheque and had misutilised the same. No defence evidence whatsoever was adduced. 3. 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. 4. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner first of all contends that the cheque was not issued for the due discharge of any legally enforcibe debt/liability. The learned counsel for the petitioner laments that though an application had been filed by the petitioner to send the cheque to the expert to verify the genuineness of the signature, that petition was rejected by the learned Magistrate. I have considered this Crl.R.P.No.4228 of 2007 3 contention carefully. Primarily we have the evidence of PW1 about circumstances under which the cheque was issued to him. The evidence of PW1 is eminently supported by his ability to produce Ext.P1 cheque. Admittedly the said cheque was drawn on a cheque leaf issued to the petitioner by his bank to operate his account. The evidence of PW1 is eminently corroborated by the admitted conduct of silence and inaction on the part of the petitioner on receipt of the statutory notice of demand. No explanation whatsoever is offered for such improbable and artificial conduct on the part of the petitioner. If his version, that the complainant had stealthily removed a cheque leaf which was kept by him in trust in the house of the complainant and that his signature was forged in such cheque, were true, it is idle to assume that the complainant will remain silent and inactive on receipt of the statutory notice of demand. On probabilities the case of the complainant is established convincingly and the prob ability of the defence pressed into service by the petitioner is not substantiated at all. The case of the petitioner has not been proved. Nor has the petitioner succeeded in generating any reasonable doubt in the mind of the court about the acceptability of the complainant's version. Crl.R.P.No.4228 of 2007 4 5. It is contended that the learned Magistrate has improperly and unfairly refused permission to the petitioner to forward the cheque to the expert. It does not require the wisdom of Solomon in the facts and circumstances of this case to assume and infer that there was no serious or bona fide intention for the petitioner to secure any expert testimony. The prayer to send the cheque to the expert was transparently made with the intention of prolonging and protracting the proceedings. I find absolutely no reason to invoke the revisional jurisdiction of superintendence and correction against the said rejection of the prayer to forward the cheque to the expert. 6. The presumption under Section 139 of the Negotiable Instruments Act does also stare at the petitioner. The petitioner, of course, is not obliged to prove his case beyond reasonable doubt nor to disprove the case of the complainant. But the facts and circumstances of this case clearly reveal that the petitioner has not succeeded in discharging his burden to rebut the presumption under Section 139 of the Negotiable Instruments Act. The challenge on merits must in these circumstances fall to the ground. Crl.R.P.No.4228 of 2007 5 7. It is next contended that the sentence imposed is excessive. I find merit in that contention. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in the decision 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 unnecessary legal battle by now and to wait from 2003 for the redressal of his genuine grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 8. 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. 9. In the result: a) This Crl.R.P is allowed in part; Crl.R.P.No.4228 of 2007 6 b) The concurrent 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.30,000/(Rupees Thirty thousand only) as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of 3 months. If realised the entire amount shall be released to the complainant. 10. The petitioner shall have time till 29.02.08 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 01.03.08, 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/- # Crl.R.P.No.4228 of 2007 7