Shaju M.T v. Vinod P and State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 Crl.Rev.Pet.No. 3209 of 2010 ------------------------------ (CRA.11/2009 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA CC.381/2005 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------- SHAJU.M.T, MANGATTUKUNNEL, THIDANADU PO, MEENACHIL TALUK. BY ADV. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA SMT.S.MEERA SMT.M.G.AISHWARYA RESPONDENTS(S): RESPONDENT/COMPLAINANT & STATE -------------------- 1. VINOD.P, PULIMOOTTIL HOUSE, MELAYALAPUZHA PO, PATHANAMTHITTA. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2010, THE COURT ON 12/11/2010 PASSED THE FOLLOWING: ## **V.K.MOHANAN,J.** ## **---------------------------------------------------------Crl.R.P.No.3209 of 2010 --------------------------------------------------------Dated this the 12[th] day of November ,2010** ## **O R D E R** The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the revision petitioner as he is aggrieved by the order of conviction and sentence imposed against him by the courts below. 2. The case of the complainant is that the accused borrowed a sum of Rs.70,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 15.2.2005 for the above amount, which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the accused and the accused has failed to pay the amount covered by the dishonoured cheque in spite of a statutory notice which was caused to be sent at the instance of the complainant. With the same allegation, the complainant approached the court of the Chief Judicial Magistrate, Pathanamthitta by filing a ## **Crl.R.PNO.3209 of 2010** ## **:-2-:** complaint upon which cognisance was taken for the offence under Section 138 of the N.I.Act and instituted C.C.No.381 of 2005. 3. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P6. From the side of the defence, DWs.1 and 2 including the accused were examined and produced Exts.D1 to D8. After an elaborate consideration and evaluation of the entire materials and evidence on record, the trial court has found that the complainant has established his case against the revision petitioner and accordingly, held that Ext.P1 cheque was issued towards the discharge of the liability of the accused towards the complainant and thus, the court found that the revision petitioner is guilty under Section 138 of the N.I.Act and accordingly, he is convicted for the said offence. On conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of three months and also directed him to pay compensation of Rs.80,000/- to the ## **Crl.R.PNO.3209 of 2010** ## **:-3-:** complainant under Section 357(3) of the Cr.P.C. and in default, he was directed to undergo simple imprisonment for a further period of three months. Challenging the above conviction and sentence, the revision petitioner has preferred an appeal Crl.A.No.11 of 2009 in the Sessions Court, Pathanamthitta. By judgment dated 9.9.2010 in Crl.A.No.11 of 2009, the court of Additional District and Sessions Judge (ADHOC) Fast Track Court-III, Pathanamthitta allowed the appeal only in part and confirmed the conviction, but the sentence is modified and reduced to imprisonment till the rising of the court, whereas all other directions of the trial court to pay compensation, compensation amount and default sentence are confirmed. It is against the above conviction and sentence ordered by the courts below, the accused preferred the present revision petition. 4. I have heard Sri.B.S.Swathi Kumar, learned counsel appearing for the revision petitioner and I have also perused the judgments of both the trial court as well as the appellate ## **Crl.R.PNO.3209 of 2010** ## **:-4-:** court. I have also considered the decisions cited by the counsel for the revision petitioner. 5. The trial court as well as the appellate court have concurrently found that the complainant has established the transaction which he claimed in the complaint and also found that the said cheque was issued by the accused towards the discharge of the liability owed to the complainant. In his fervent plea for an acquittal in favour of the revision petitioner, the learned counsel submitted that the complainant has miserably failed to establish the transaction, execution and issuance of the cheque. To substantiate the above contention, the learned counsel took me through the deposition of the complainant, who was examined as PW1, and submitted that the only evidence of PW1 is to the effect that the accused issued the cheque and there is no evidence particularly with respect to the place at which the amount was given and the execution and issuance of the cheque etc. It is also the argument of the learned counsel that the revision ## **Crl.R.PNO.3209 of 2010** **:-5-:** petitioner/accused has succeeded in establishing the case of the defence and thereby rebutted the presumption, but the courts below have miserably failed to consider the probable case established by the defence and therefore, according to the learned counsel, the trial court as well as the appellate court are wrong in holding that the complainant has established the case against the revision petitioner and the defence failed to rebut the presumption by making out a probable case. In support of the above submission, the learned counsel placed reliance upon the decisions of this Court reported in **Jose** v. **Joy** (2008(3) KLT 512) and **Bhaskaran Nair** v. **Mohanan** (2009(2) KLT 897). 6. I have carefully considered the arguments advanced by the learned counsel and I have also perused the decisions cited by the learned counsel. The specific case of the complainant is that the accused approached him for a loan of Rs.70,000/- and according to the complainant, he had paid such an amount to the accused and simultaneously, the ## **Crl.R.PNO.3209 of 2010** **:-6-:** accused issued Ext.P1 cheque after its due execution. In order to substantiate the above claim, the complainant himself mounted to the box and deposed before the court in terms of the said claim. He had also produced Ext.P1 cheque from his possession which contained the signature of the accused and the said cheque pertained to the account maintained by the accused. In the decision reported in **Johnson Scaria** v. **State of Kerala** (2006 (4) KLT 290), this Court has held that admission of signature in a cheque goes a long way to prove due execution. It was also held that possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. It was also held that burden rests on the complainant to prove execution and issue. But, under Section 114 of the Evidence Act, appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanation offered. Though the complainant was subjected to lengthy cross-examination, according to the ## **Crl.R.PNO.3209 of 2010** ## **:-7-:** courts below, nothing was elicited from him to discredit his version and to disbelieve the case of the complainant. The only fact brought out through the cross-examination is that when the accused approached the complainant, the accused was accompanied by one Aneesh. But, the complainant denied the suggestion that the accused has not even known to the complainant and also denied the suggestion that Ext.P1 is one of the cheques given as security to the said Aneesh and the present case is instituted in collusion between the complainant and the said Aneesh. But, after appreciating the evidence of PW1 and the other prosecution evidence, both the courts below found that the complainant has established the transaction, execution and issuance of the cheque. 7. Now, let me examine whether the accused has succeeded in establishing a probable case to rebut the presumption under Section 139 of the N.I.Act. The specific plea set up by the accused is that he had absolutely no transaction with the complainant and the cheque in question is ## **Crl.R.PNO.3209 of 2010** ## **:-8-:** one of the several cheques handed over to one Aneesh as a security when the accused purchased a vehicle from the said Aneesh. Thus, according to the defence, the cheque in question was not executed and issued by him to the complainant. In order to substantiate the above version, the defence heavily relied upon the depositions of DWs.1 and 2 and also produced Exts.D1 to D8. The trial court as well as the appellate court, after a close scrutiny of the defence materials, came to a conclusion that the defence evidence is not helpful for the defence either to disprove the case of the complainant or to establish a probable case so as to rebut the presumption that is available in favour of the complainant. However, as the learned counsel for the revision petitioner has vehemently argued on the basis of the defence material and evidence to establish that the defence has succeeded in making out a probable case, let me examine the defence case and how far he succeeded in establishing a probable case to discharge his burden. ## **Crl.R.PNO.3209 of 2010** ## **:-9-:** 8. Before going into the version of defence and materials, we have to bear in mind that PW1 has adduced evidence in favour of the allegation contained in the complaint and he had produced Ext.P1 cheque from his possession, a cheque which pertained to the account of the accused and the same contained the signature of the accused. According to the defence, the said cheque was not executed and issued by him to the complainant, but to one Aneesh. His further plea is that the said Aneesh handed over the said cheque to the complainant based upon which the complainant initiated the present prosecution. It is the further story of the accused that several cheques including the present one were handed over to the said Aneesh connected with a vehicle purchase. But, though such a story was put forward by the defence, absolutely no evidence is produced to substantiate those facts. It is true that DW1 was examined and Exts.D1 to D8 were marked. Out of the two defence witnesses, DW2 is the accused himself. DW1 is the Sub Inspector of Police attached to Perunad Police ## **Crl.R.PNO.3209 of 2010** ## **:-10-:** Station and through whom, Exts.D1 and D2 were marked. Exts.D3 to D8 were marked through DW2, the accused. Ext.D3 is an agreement for sale of vehicle entered into between the accused and one Aneesh. Ext.D4 is the reply notice issued by the appellant and according to DW2, Ext.P4 notice, caused to be issued by the complainant, was accepted by him under the compulsion of postal authorities. Ext.D5 is the notice received by the accused by which he was directed to remit the instalment dues and Ext.D6 is the reply for the said notice. Ext.D7 is the postal receipt and Ext.D8 is the postal acknowledgement card. So, those defence documents have nothing to do with the case of the complainant since there is no reference to the cheque in question in any of those documents. Those documents are, at the most, can be shown as connected with the purchase of the vehicle. The other independent evidence is that of the deposition of DW1 and Exts.D1 and D2. Ext.D1 is the F.I.R. in Crime No.12 of 2005 of Perunad Police Station which was registered on the basis of ## **Crl.R.PNO.3209 of 2010** **:-11-:** the complaint preferred by the accused herein, connected with the transaction involving the sale of vehicle. But, DW1 had deposed before the court that after investigation in Ext.D1 crime, a refer report was filed as per Ext.D2. It is true that in Ext.D1 F.I.R., the accused herein is the de facto complainant. But, even that case was referred as per Ext.D2 refer report since according to the Police, after investigation, it was revealed that the said case was registered on mistake of facts. But, when DW1 was examined, according to the trial court, the de facto complainant in Ext.D1 crime, who is none other than the accused herein, had received a sum of Rs.70,000/- from witness No.2, who is the complainant herein and thus, according to the learned Magistrate, the evidence of DW1 coupled with Exts.D1 and D2 negatived the defence version, on the other hand corroborated the testimony of PW1 that the accused had availed of a loan of Rs.70,000/- from the complainant and simultaneously, issued a cheque in question. There is no material to show that the cheque in question was ## **Crl.R.PNO.3209 of 2010** **:-12-:** the one which is given as a security to the said Aneesh as claimed by the defence. From the version of the accused, it is crystal clear that the cheque in question is duly executed and issued by him, but his version is that the same is issued to the said Aneesh which version is not substantiated by any material or evidence either directly or indirectly. So also, there is no evidence to show that Aneesh had handed over the cheque in question to the complainant. As rightly observed by the learned Magistrate, on the basis of the evidence of DW1 and as per Exts.D1 and D2, it would show that the accused has received Rs.70,000/- from the complainant. Therefore, when PW1 deposed regarding the transaction between himself and accused and when he produced the duly signed cheque of the accused from the possession of the complainant, the only conclusion that can be arrived is that the cheque in question was handed over to the complainant by the accused in discharge of the liability that is due to the complainant. In the present case, the oral as well as documentary evidence ## **Crl.R.PNO.3209 of 2010** ## **:-13-:** adduced by the defence are not capable at least to establish a probable case in terms of the case put forward by the defence. Hence, the contentions raised by the learned counsel are liable to be rejected and I do so. 9. The learned counsel, relying upon the decision reported in **Jose** v. **Joy** (2008(3) KLT 512), submitted that the probability of the prosecution case does not depend upon the improbability or falsity of defence case. In the present case, according to me, as rightly held by the trial court as well as the appellate court, PW1 has established the case beyond reasonable doubt supported by his deposition and by producing documentary evidence including Ext.P1 cheque. But, the facts and circumstances involved in the above referred case are entirely different from the present one. In the said case, the transaction was admitted and according to the defence therein, the liability was settled and as evidenced by Exts.D1 and D1(a), the cheque was not returned in spite of the request and therefore, a stop memo was issued by the accused ## **Crl.R.PNO.3209 of 2010** ## **:-14-:** therein and also initiated criminal prosecution against the complainant therein. So, in the light of the factual difference, the above decision has no relevance in the present case. With respect to the dictum laid down by this Court in the decision reported in **Bhaskaran Nair** v. **Mohanan** [2009(2) KLT 897], which is heavily relied on by the counsel, there is no dispute at all. In the present case, the evidence of PW1/the complainant and the circumstances under which Ext.P1 cheque was issued are fully established the case of the complainant and the case has been established beyond reasonable doubt by the complainant and the defence evidence also further corroborates or strengthens the case of the complainant. Hence, the above decision is not relevant in the present case. 10. In the light of the above facts, materials and evidence on record, I am of the view that the trial court as well as the appellate court are perfectly correct and legal in holding that the complainant has established his case beyond reasonable doubt and proved that Ext.P1 cheque was issued by the ## **Crl.R.PNO.3209 of 2010** **:-15-:** accused, towards the discharge of the liability that is due to the complainant out of the transaction claimed by the complainant and the accused failed to rebut the presumption. Thus, I find no reason to interfere with the concurrent findings of the courts below. 11. As this Court is not inclined to interfere with the conviction recorded by the court below, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. I find no reason to decline the above request and according to me, while granting some time, the compensation amount fixed by the courts below can be enhanced slightly considering the fact that the amount covered by the cheque in question is with the revision petitioner for the last five years though actually the same belongs to the complainant. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act, as recorded by the courts ## **Crl.R.PNO.3209 of 2010** ## **:-16-:** below. Accordingly, while confirming the sentence of imprisonment ordered by the appellate court, the revision petitioner is directed to pay a sum of **Rs.85,000/-** (Rupees Eighty Five Thousand only) to the complainant as compensation under Section 357(3) of the Cr.P.C. within four months from today and in default, he is directed to undergo simple imprisonment for a period of four months. Accordingly, the revision petition is directed to appear before the trial court on **7[th] March,2011** to receive the sentence of imprisonment and to pay compensation of Rs.85,000/- as ordered above and in case of any default in appearing before the court below and paying the compensation amount as directed above, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and to realise the compensation amount which shall be given to the complainant. Coercive steps, if any, pending against the petitioner shall be deferred till **7.3.2011** . ## **Crl.R.PNO.3209 of 2010** **:-17-:** This Criminal Revision Petition is disposed of accordingly. **V.K.MOHANAN, Judge.** MBS/ ## **Crl.R.PNO.3209 of 2010** **:-18-:**