Said Muhammed Bafaky v. P.K. John and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** **Crl.Rev.Pet.No.58 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CRA 746/2005 OF ADDITIONAL SESSIONS COURT -II, KOZHIKODE** **AGAINST THE ORDER/JUDGMENT IN CC 537/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SAID MUHAMMED BAFAKY S/O. SAID AHAMMED, V.M.HOUSE, KOYA ROAD,, P.O. PUTHIYANGADI, KOZHIKODE DISTRICT.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** |**1**|**P.K.JOHN**| |---|---| ||**DEVELOPMENT OFFICER, UNITED INDIA INSURANCE,**| ||**COMPANY LTD., BRANCH-1, CHEROOTY ROAD, KOZHIKODE.**| |**2**|**STATE OF KERALA**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT**| ||**OF KERALA, ERNAKULAM.**| ||**R1 BY ADV. PUBLIC PROSECUTOR**| ||**R1 BY ADV. SRI.NAIR AJAY KRISHNAN**| ||**R1 BY ADV. SRI.NAGARAJ NARAYANAN**| ||**R1 BY ADV. SRI.RAJAN VELLOTH**| ||**R1 BY ADV. SRI.SAIJO HASSAN**| ## **OTHER PRESENT:** ## **SRI. M.S.BREEZ - SR.PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-06-2020, THE COURT ON 22-06-2020 PASSED THE FOLLOWING:** Crl.R.P.No.58 of 2007 2 ## **M.R.ANITHA, J.** ## **--------------------------------Crl.R.P.No.58 of 2007 --------------------------------Dated this the 22[nd] day of June, 2020** ## **O R D E R** This Criminal Revision Petition has been filed against the concurrent finding of guilt, conviction and sentence passed against the revision petitioner/accused in Crl.A.No.746/2005 dated 18.11.2006 of the Additional Sessions Judge-II, Kozhikode. 2. The case against the revision petitioner/accused was taken on file by the Judicial First Class Magistrate-I, Kozhikode based upon a complaint filed under Section 141 of the Negotiable Instruments Act,1881 (for short 'the Act'). 3. The case of the first respondent/complainant is that revision petitioner/accused borrowed an amount of Rs.70,000/from him on 06.08.1997 and in discharge of the said liability, he issued a cheque for Rs.70,000/- on the same day. On presentation of the cheque on 05.12.1997 it was bounced for the reason of insufficiency of funds. Thereafter, complainant met the revision petitioner/accused and informed him about the Crl.R.P.No.58 of 2007 3 dishonour and he apologised and issued another cheque dated 16.01.1998 for Rs.75,000/-. On presentation of that cheque, it was also dishonoured on 21.01.1998 for the reason of insufficiency of fund. Thereafter, notice was issued and within the statutory period complaint was filed. 4. Complainant himself has got examined as PW1 and Exts.P1 to P10 were marked. Revision petitioner/accused was questioned under Section 313 Cr.P.C. and he denied all the incriminating facts and circumstances put to him and further filed additional statement contending that he borrowed only Rs.10,000/- from the complainant and he agreed to pay Rs.100/per month for Rs.1,000/- as interest and two blank cheques were given as security at the time of borrowal and those cheques were misused since the revision petitioner was not amenable to pay interest at the rate of Rs.150/- per month. Thereafter, on hearing both sides, the trial court found the appellant guilty under Section 138 of the Act and sentenced him to undergo simple imprisonment for three months and also to pay a sum of Rs.85,000/- as compensation, in default of payment of compensation, to undergo simple imprisonment for two months. Aggrieved by the conviction and sentence, the appellant filed Crl.R.P.No.58 of 2007 4 Crl.A.No.746/2005 and the Second Additional Sessions Court, Kozhikode allowed the appeal in part confirming the finding and modifying the award of sentence. Aggrieved by the same, revision petitioner came up in revision for various grounds stated in the memorandum of criminal revision petition. 5. When the matter came up for hearing, the learned counsel for the revision petitioner fairly conceded that the contention raised by the revision petitioner was that he entrusted blank singed cheques and that has been misused and it could not be substantiated and hence he actually prayed for a reduction of sentence by reducing the compensation from Rs.85,000/- since the amount borrowed is Rs.70,000/- and further sought for sufficient time for repayment of the amount in view of the pandemic situation. 6. The complainant as PW1 deposed in tune with the complaint and the initial cheque for Rs.70,000/- issued by the accused at the time of borrowal on 06.08.1997 has been produced and marked as Ext.P1. Ext.P2 is the pay-in-slip showing the presentation of Ext.P1 cheque and Ext.P3 is the dishonour memo showing that the cheque was returned for the Crl.R.P.No.58 of 2007 5 reason of insufficiency of funds and thereafter he approached the accused and after apologising for the inconvenience caused he again issued Ext.P4 cheque for Rs.75,000/- on 16.01.1998 and Ext.P5 is the slip issued on presentation of Ext.P4 cheque on 21.01.1998 and Ext.P6 is the dishonour memo proving that cheque has been dishonoured for the reason of insufficiency of funds. Ext.P7 is the copy of the lawyer notice dated 04.02.1998 issued by the complainant to the accused intimating about the dishonour and demanding the amount. Ext.P8 is the postal receipt and Ext.P9 is the postal acknowledgement card proving the receipt of that notice by the accused. 7. During cross examination, a case was put up to the effect that accused borrowed the amount from the complainant through one Sudheer and accused issued the two cheques for security of that transaction and those cheques have been misused. But he categorically admitted that accused had signed Ext.P4 cheque in front of him by putting the amount and date though he cannot state whether name was written or not. Further suggestion was put that the Rs.10,000/- was borrowed through Sudheer and two cheques issued as security in that transaction have been misused by the complainant and this case Crl.R.P.No.58 of 2007 6 has been filed, was also stoutly denied by the complainant. At the time of his examination, he also reiterated the contention of availment of Rs.10,000/- and issue of two signed cheques as security in discharge of that liability and misuse of the cheques by the complainant in filing the complaint. But, as has been rightly found by the trial court and the appellate court, apart from making some suggestions to PW1 during cross examination and his additional statement during examination under Section 313(1)(b), there is no material whatsoever to prove the alleged borrowal of Rs.10,000/- by the accused from the complainant through one Sudheer. At least the said Sudheer could have been examined to prove the alleged transaction of borrowal of Rs.10,000/-. On the other hand, complainant has alleged in the complaint and sworn in consistently about the transaction between himself and the accused. The production of Ext.P1 cheque and the dishonour of the same and subsequent issue of Ext.P4 cheque for Rs.75,000/- etc. have been stated by the complainant before the court. 8. As stated earlier, apart from making some suggestions with regard to the borrowal of amount of Rs.10,000/- through Sudheer and issue of blank signed cheque nothing could be Crl.R.P.No.58 of 2007 7 brought out to discredit the testimony of PW1 with regard to the borrowal of the amount and issue of Ext.P4 cheque. In **Sulochana Devi v. Baburaj V. [2016 (1) KHC 134]** ), it is well settled that a mere suggestion made to a witness during cross examination do not form evidence and it can only be an indicative of the case put forth or the stand taken by a party on whose behalf the cross examination was being conducted and the suggestion was put. But it cannot substitute for evidence when once the suggestion was repudiated by the witness to whom it was made. So, on a close evaluation of the evidence of PW1-the complainant and Ext.P4 cheque, as has been rightly found by the trial court and the appellate court, the complainant had discharged the initial burden of borrowal of the amount and issuance of the cheques. Once the initial burden is discharged by the complainant, the presumption under Section 139 and 118 of the Act would come to the rescue of the complainant. In **Devan v. Krishna Menon [2010 (2) KLT 397]** , it has been held that once the signature, execution and handing over the cheque is satisfactorily proved, by the evidence by the complainant, presumption under Section 139 of the Act would come into play and the same holds the field until the accused Crl.R.P.No.58 of 2007 8 discharges the burden on him at least by the inferior standard of preponderance of probabilities as in a civil case. In **Hamza Musliar P.K. v. Hamza Khan & Anr. [2014 (4) KHC 883]** also it has been held that once execution of the cheque is proved by the complainant, then burden is heavy on the accused to prove circumstances under which the cheque reaches the hands of complainant. Failure of the accused to prove said circumstances casts a serious doubt on the defence case of the accused and court will be justified in believing the case of the complainant by relying the presumption available under Sections 139 and 118 of the Act. In **Bir Singh v. Mukesh Kumar [2019 (1) KHC 774 (SC)]** it has been held that a blank cheque leaf, voluntarily signed and handed over by accused, which is towards some payment, would attract presumption under Section 139, in the absence of any cogent evidence to show that cheque was not issued in discharge of a debt. It is also held that mere filling up of cheque by payee would not invalidate cheque and it does not amount to alteration. So since the complainant had discharged the initial burden, the presumption under Section 139 would come to the rescue of the complainant and the burden is upon the accused to rebut the Crl.R.P.No.58 of 2007 9 presumption either by bringing out of any material through the cross examination of the complainant or adducing any evidence. 9. Here, as I stated earlier, apart from making some suggestions to PW1 during the cross examination and his additional statement under Section 313(1)(b), there is no material whatsoever to rebut the presumption which are available in favour of the complainant under Section 139 and 118. Hence, I do not have any hesitation to find that accused issued Ext.P4 cheque in discharge of a legally enforceable debt due to the complainant. Ext.P5 slip dated 21.01.1998 showing the presentation of the cheque and dishonour memo Ext.P6 dated 23.01.1998 and copy of the lawyer notice Ext.P7 dated 04.02.1998 and Ext.P8 postal receipt dated 04.02.1998 and Ext.P9 postal acknowledgement card dated 18.02.1998 would prove that after the dishonour of the cheque within the statutory period, the lawyer notice was issued and Ext.P10 the ledger extract of the account of the accused also prove that there was no sufficient fund in the account of the accused to honour the cheque. Complaint also has been filed within the prescribed time. So the act proved to have been committed by the accused would attract an offence under Section 138 of the Act. Hence, Crl.R.P.No.58 of 2007 10 both the courts rightly found the accused guilty under Section 138 of the Act. So, I find no reason to interfere with the findings made by the courts below. 10. Next is with regard to the sentence. The revision petitioner/accused has been sentenced to undergo simple imprisonment till rising of the court and to pay compensation of Rs.85,000/- under Section 357 (3) Cr.P.C, in default of payment of compensation, to undergo simple imprisonment for two months. The learned counsel for the revision petitioner/accused sought for sufficient time for payment of the compensation and the counsel for the first respondent also fairly conceded to give four months time in view of the pandemic situation. 11. In the result, Revision Petition allowed in part confirming the finding and modifying the sentence to that of payment of fine of Rs.85,000/- (Rupees eighty five thousand only), in default, to undergo simple imprisonment for two months. Fine amount, if realised, shall be paid to PW1, towards compensation under Section 357(1)(b) Cr.P.C. In view of the pandemic situation, as agreed by the parties, four months time from this date is given to the revision Crl.R.P.No.58 of 2007 **==> picture [14 x 8] intentionally omitted <==** petitioner/accused to pay the amount. If the fine amount is not paid within the above said period, learned Magistrate shall take steps for execution of the sentence passed against the accused/revision petitioner. Sd/- **M.R.ANITHA** Shg **JUDGE**