Sreevasan Nair v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Crl.Rev.Pet.No. 76 of 2008() ---------------------------CRA.106/2004 of ADDL. SESSIONS COURT (ADHOC), KOLLAM CC.2218/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------- SREEVASAN NAIR, PRASANTHI, PUNNATHALA, THIRUMULLAVARAM P.O., KOLLAM. BY ADV. SRI. K.SIJU SRI.PRATHEESH.P RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SEETHA LAKSHMI, MADHAV, KALLUMPURAM, SAKTHIKULANGARA P.O., KOLLAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. SRI.SAJJU.S THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R. BASANT, J. ------------------------------------------------Crl.R.P. No. 76 OF 2008 ------------------------------------------------Dated this the 15[th] day of January, 2008 ORDER** 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 simple imprisonment for a period of one year and to pay an amount of Rs.3 lakhs as compensation under Sec. 357(3) of the Cr.P.C. and in default, to undergo simple imprisonment for a further period of one year. 2. The cheque is for an amount of Rs.3 lakhs. It bears the date 10/11/99, submit both counsel. The signature in the cheque is admitted. That the cheque for Rs.3 lakhs was handed over by the petitioner, after affixing his signature, is also admitted. Notice of demand, though duly received and acknowledged, did not evoke any response from the petitioner – an Engineer by profession. The accused took the stand, in **Crl.R.P. No. 76 OF 2008** -: 2 :- the course of trial, that the cheques were handed over not to the complainant – a woman; but to her husband. According to him, though the liability was only Rs.1 lakh, two signed cheques – both for Rs.3 lakhs, were handed over by him to the husband of the complainant. Such blank signed cheques were being misused by the complainant in collusion with her husband. This, in short, is the plea raised. The complainant examined herself as P.W.1 and proved Exts.P1 to P6. On the side of the accused, D.Ws.1 and 2 were examined and Exts.D1 and D2 were marked. D.W.1 is the Manager of the bank in which the complainant has an account. D.W.2 is allegedly a person who had witnessed the transaction between the accused and the husband of the complainant. 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I.Act. They further held that the accused has not succeeded in establishing his case or even in generating a reasonable doubt about the case of the complainant. Accordingly they proceeded to pass the impugned concurrent judgments. **Crl.R.P. No. 76 OF 2008** -: 3 :- 4. 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 assails the impugned judgments on two grounds. 5. First of all, it is contended that the cheque was not issued to the complainant for the due discharge of any legally enforceable debt/liability. The learned counsel for the petitioner reiterates the contention that the cheque for Rs.3 lakhs duly signed was handed over by the petitioner to the husband of the complainant as security for the due repayment of a loan for Rs.1 lakh taken by him from the husband of the complainant. 6. The evidence of P.W.1 is primarily there on the side of the complainant in support of her theory about the circumstances under which the cheque was handed over to her by the petitioner. It is significant to note that the signature in the cheque is admitted. It is more crucial to note that it is conceded that the cheque was one for Rs.3 lakhs even when it was handed over by the petitioner. The petitioner, as stated earlier, is an Engineer by profession and it must be assumed that he understands the significance of handing over of a cheque **Crl.R.P. No. 76 OF 2008** -: 4 :- duly signed after entering the figures. It is in this context that the conduct of the petitioner on receipt of the notice of demand becomes crucially relevant. His silence and inaction after receipt of the notice is definitely inconsistent with his theory that the cheque was handed over as security and not for the due discharge of any legally enforceable debt/liability. The learned counsel for the respondent/complainant particularly points out that during the course of cross-examination of P.W.1, such a defence as the one advanced now – that the cheque was handed over as security to the husband of the complainant, was not raised at all. In fact, the cross-examination clearly shows that the transaction between the petitioner and the complainant was unambiguously admitted. 7. The learned counsel for the petitioner submits that the complainant did not have the resources and her assertion about the resources is shown to be not true by the evidence of D.W.1. Of course, I note that there is a discrepancy on this aspect. But the mere fact that on the date of the loan, the complainant had not withdrawn the amount from her bank as asserted by her in the course of cross-examination, according to me, it is not **Crl.R.P. No. 76 OF 2008** -: 5 :- sufficient to tilt the scales in favour of the petitioner/accused. The evidence of D.W.2 also cannot be said to be sufficient to clinch the issue or even to generate a reasonable doubt against the case of the prosecution in favour of the petitioner. 8. The totality of circumstances lead me to the conclusion that the complainant has succeeded in establishing that the cheque was handed over to her for the due discharge of any legally enforceable debt/liability. The inputs available are loaded in favour of the complainant. The burden under Sec.139 of the Negotiable Instruments Act also stares at the petitioner. The petitioner has not succeeded in discharging the burden to rebut the presumption or even to generate a satisfactory and reasonable doubt against the very case of the complainant. The challenge raised on this sole ground must, in these circumstances, fail. 9. The learned counsel for the petitioner then contends that the sentence imposed is excessive. I have already adverted to the principles governing imposition of sentence in a prosecution under Sec.138 of the N.I. Act in the decision reported in **Anilkumar v. Shammy (** 2002 (3) K.L.T. 852). I am **Crl.R.P. No. 76 OF 2008** -: 6 :- not satisfied that there are any compelling circumstances available in this case which would justify the imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence. But at the same time the courts cannot ignore the plight of the respondent/complainant who has been compelled to fight three rounds of legal battle by now and wait from 1999 for redressal of her genuine grievance. An appropriate direction for payment of compensation coupled with default sentence and a lenient substantive sentence of imprisonment shall meet the ends of justice, I am satisfied. 10. In the result: (a) This Criminal Revision Petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Sec.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 under Sec.357(3) of the Cr.P.C. to pay an amount of Rs.3.45 lakhs as compensation and in **Crl.R.P. No. 76 OF 2008** -: 7 :- default, to undergo simple imprisonment for a period of three months. If realised, the entire amount shall be released to the respondent/complainant. 11. The petitioner shall have time till 29.02.08 to make the payment and avoid the default sentence. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 1/3/08 for execution of the modified sentence hereby imposed. Sd/- ## **(R. BASANT, JUDGE)** ## **Nan/** //true copy// P.S. to Judge