SANTHU MOAMMED v. K. RAJAN and STATE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 9TH DAY OF JANUARY 2014/19TH POUSHA, 1935** **Crl.Rev.Pet.No. 2081 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A 87/2010 of ADDITIONAL DISTRICT COURT (AD HOC-I), PALAKKAD DATED 05-06-2013** **AGAINST THE JUDGMENT IN ST 66/2005 of C.J.M.PALAKKAD DATED 14-01-2010** **REVN.PETITIONER/APPELLANT/ACCUSED:** **------------------------------------** **SANTHU MOAMMED, AGED 59 YEARS, S/O. ATHAR MOHAMMED, BINDHIA READYMADE CENTRE, METRO BAZAR, MARKET ROAD, PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------------------** **1. K.RAJAN, S/O. KALIYAPPA KOUNDER, PECHIYAMMAN NAGAR, KALPATHY, PALAKKAD-678 003.** **2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADV. SRI.P.K.MOHANAN(PALAKKAD) R2 BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** ## **-------------------Crl.R.P. No.2081 of 2013 -----------------------------Dated this the 9[th] day of January, 2014** ## **ORDER** The revision petitioner is the accused in S.T.No.66/05 on the files of the Chief Judicial Magistrate's Court, Palakkad. He was prosecuted for the offence punishable under Sec.138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') on a complaint filed by the 1[st] respondent herein. The case of the complainant is that the accused borrowed a sum of 4,50,000/- from the complainant₹ agreeing to repay the same with interest at the rate of 12% per annum and towards the discharge of the said liability, a cheque dated 10/12/04 for the said amount was issued. When the cheque was sent for collection, it was returned dishonoured for the reason 'fund insufficient' with a memo dated 13/12/04. Thereafter, a registered lawyer's notice dated 16/12/04 was caused to be sent intimating the dishonour and demanding back the said cheque amount. No reply **Crl.R.P. No.2081 of 2013 2** was sent; nor did he repay the amount. Thus, the accused has committed the offence punishable under Sec.138 of the N.I. Act. 2. The accused pleaded not guilty and when he was questioned on the incriminating circumstances brought in evidence, as provided under Sec.313(1)(b) of the Code of Criminal Procedure, he denied all the allegations and reiterated his plea of innocence. He further stated that Ext.P1 cheque does not bear his signature. The bank account was closed by him much earlier. The complainant somehow secured a blank cheque and after forging his signature, the said cheque was presented and thereafter complaint was filed. To substantiate the said contention, D.W.1 was examined and Exts.D1 and 2 were marked. 3. To prove the prosecution case, the complainant was examined as P.W.1 and Exts.P1 to P4(d) were marked to prove the execution and issuance of the cheque. After appreciating the evidence of P.W.1, the trial court found that the complainant has successfully discharged the initial burden of proving execution and issuance of the **Crl.R.P. No.2081 of 2013 3** cheque and thereby the presumption under Sec.118(a) and 139 of the N.I. Act would stand in favour of the complainant. Coming to the rebuttal evidence, the trial court analysed the evidence of D.W.1 and Exts.D1 and D2. D.W.1 is the handwriting expert to whom the disputed cheque with documents containing the admitted signature had been sent. After detailed analysis of the disputed as well as admitted signature, DW1 opined that the questioned signature found affixed in the cheque No.095556 concerned in this case was made by the author of the specimen Sri.Saithu Mohammed. In the box he clarified the reasons to reach the said conclusions. There are no probable reasons to discard the Ext.D1 report and accepted as relevant fact. On the basis of the evidence adduced by DW1 and Exts.D1 and D2, the trial court arrived at finding that Ext.P1 cheque bears the signature of the accused and the case of the complainant that the signature was put in his presence would stand corroborated by Ext.D1 report and the evidence of DW1. **Crl.R.P. No.2081 of 2013 4** 4. Then the question is how the disputed cheque happened to be in the possession of the complainant. The accused has no specific case on the above aspect and no evidence had been adduced to show that the said cheque was not issued in discharge of a legally enforceable debt by him. His only version is that somehow the complainant secured a blank cheque after forging the signature of the said cheque was presented for collection and thereafter misused for prosecuting him. The said contention is satisfactorily disproved by the evidence of DW1 coupled with Exts.D1 and D2. Thus the accused miserably failed to rebut the presumption under Secs. 118(a) and 139 of the N.I.Act. which stood in favour of the complainant. I find that three is no illegality or impropriety in the findings arrived at by the courts below concurrently and I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived at. Consequently, I confirm the verdict of guilty and conviction thereunder. 5. Coming to the sentence, the learned counsel for ## **Crl.R.P. No.2081 of 2013** **5** the revision petitioner submits that the sentence imposed on the revision petitioner is disproportionate with the nature and gravity of the offence under Sec.138 of the N.I.Act. The court below has not considered the compensatory aspect of remedy available to the complainant. The prosecution for an offence under Sec. 138 of the N.I.Act is almost of a civil nature having criminal overtone and imposition of fine payable as compensation is sufficient to meet the ends of justice. Loss sustained by the complainant can be restored by way of compensation. Thus compensatory aspect of remedy should be given much priority than punitive aspect. This proposition is supported by **Damodar S Prabhu v. Sayed Babalal [2010(2) KLT 587(SC)] and Vijayan v. Baby [2011(4) KLT 355 (SC)].** 6. In the above view, I am of the opinion that the court below should have considered the compensatory aspect of remedy. But here the learned Magistrate sentenced the revision petitioner to undergo simple imprisonment for a period of three months only. The **Crl.R.P. No.2081 of 2013 6** learned counsel for the revision petitioner submits that the complainant had already obtained decree from competent civil court for realising the cheque amount from the revision petitioner. 7. Having regard to the nature and gravity of the offence in view of the decision laid down by the Apex Court also, I am inclined to modify substantive sentence of imprisonment imposed on the revision petitioner by way of substituting with compensation. It is made clear that if the complainant had obtained a decree for realisation of the cheque amount in the civil suit, while executing the decree, compensation received by the complainant in this proceedings shall be given credit to under Sec. 357(5) of the Cr.P.C. Any how at present, the said amount has not been realised in execution of the decree. 8. In supersession of the sentence imposed by the trial court and confirmed by the appellate court, the revision petitioner will stand sentenced as follows. i) The revision petitioner shall undergo simple **Crl.R.P. No.2081 of 2013** **7** imprisonment for one day till rising of the court. - ii) The revision petitioner shall pay a compensation of - ₹4,50,000/- (Rupees Four Lakhs Fifty Thousand only) to the complainant/1[st] respondent within a period of six months from today under Sec.357(3) of Cr.P.C. - iii) The revision petitioner shall appear before the trial - court to suffer substantive sentence of simple imprisonment as ordered above on or before 09/07/2014 with sufficient proof to show payment of compensation. - iv)In default, the revision shall undergo simple imprisonment for a period of three months. This revision petition is disposed of accordingly. Sd/- **K.HARILAL JUDGE** NAN/MJL