Sundharan v. Chandran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935** ## **Crl.Rev.Pet.No. 1043 of 2003 (C)** **--------------------------------------------[CRL.APPEAL NO.111/2002 OF THE SESSIONS COURT, THRISSUR, DTD. 04/03/03,** **S.T.NO.1817/1999 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.II, THRISSUR]** **...............** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **SUNDHARAN, S/O. KOZHIPARAMBIL NANIKUTTY, KANIMANGALAM VILLAGE, TRICHUR.** **BY ADVS.SRI.U.RAVISANKAR, SRI.PEARLY JOSE.** ## **RESPONDENTS/RESPONDENTS:** **------------------------------------------------** **1. CHANDRAN, S/O. ALOOKARAN BALAMANI, PALISSERY VILLAGE, TRICHUR.** **2. STATE OF KERALA, REPRESENTED BY GOVT. PLEADER, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.IEANS C. CHAMAKKALA, R2 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **K.HARILAL, J.** = = = = = = = = ## **Crl.R.P.No.1043 of 2003** = = = = = = = = = = = = = = Dated this the 4[th] day of July, 2013 ## **O R D E R** The Revision Petitioner is the accused in S.T.No.1817/1999 on the files of the Judicial First Class Magistrate's Court-II, Thrissur. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'), on a complaint filed by the first respondent herein. After trial, the learned Magistrate found the accused/Revision Petitioner guilty of the offence punishable under Section 138 of the N.I.Act and convicted thereunder. He was sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.35,000/to the complainant/1[st] respondent and in default to undergo simple imprisonment for two months. Though he had preferred Criminal Appeal No.111 of 2002 before the Court of Sessions Judge, Thrissur, after re-appreciating the evidence, the Sessions Judge also confirmed the conviction and modified the sentence. The substantive sentence of **Crl.R.P.No.1043 of 2003** 2 simple imprisonment was reduced and modified to imprisonment for ten days and the amount of compensation was enhanced to Rs.42,000/- with a default sentence of three months simple imprisonment. This revision petition is filed challenging the concurrent findings of conviction and modified sentence. 2. It is the case of the complainant that the Revision Petitioner/accused had borrowed Rs.35,000/- from him and on demand in discharge of that debt, he issued cheque dated 25/05/1998 for an amount of Rs.35,000/- in favour to him. When the cheque was presented for encashment, the same was dishonoured and returned for want of sufficient funds. Though the statutory notice claiming cheque amount was sent and received the same, the Revision petitioner has not responded to the notice. 3. The contention raised by the Revision petitioner in defence was that on 21/03/1997 he has borrowed a sum of Rs.20,000/- from the 1[st] respondent and for the said amount he executed Ext.D1 Promisory note and has given a blank **Crl.R.P.No.1043 of 2003** 3 signed cheque to the 1[st] respondent as security. Though the said amount had been repaid, the blank cheque was not returned by the 1[st] respondent, saying some excuses but returned the Promissory note alone. 4. To prove the execution and issuance of the cheque, the 1[st] respondent was examined as PW1 and Exts.P1 to P5 were marked. After considering the evidence adduced by the 1[st] respondent, the court below concurrently found that though 1[st] respondent/complainant was subjected to severe cross examination at length into minute details, nothing brought out to discredit his version and his evidence is further supported by Exts.P1 to P5 and thereby 1[st] respondent/complainant successfully discharged initial burden of proving execution and issuance of the cheque. Thus, the court below concurrently found that the presumption under Section 118(a) and 139 of the N.I Act was stood in favour of the 1[st] respondent. Per contra, to rebut the said presumption, the Revision petitioner was examined as DW1 and the Bank Manager was examined as **Crl.R.P.No.1043 of 2003** 4 DW2 and Ext.D1 Promissory Note allegedly given to the 1[st] respondent/complainant was also produced. After considering the evidence adduced by the Revision petitioner, the court below concurrently found that the accused miserably failed to rebut the presumption at least by the yardstick of preponderance of probabilities. Thus, the accused failed to improbabalise the case of the complainant either by cross examination of the complainant or by producing positive evidence. This is the concurrent findings of the court below. 5. In this revision petition, the main ground is that the Appellate Court failed to consider the contention that Ext.P1 cheque was a blank cheque given as security and the same was altered materially and there after misused for prosecuting the accused unnecessarily. The Bank Manager was examined as DW2 to prove Ext.P1 was a materially altered cheque. During cross examination, DW2 deposed that the cheque was dishonoured on the ground of want of sufficient funds and as 'document not clear due to date **Crl.R.P.No.1043 of 2003** 5 correction' but in cross examination she was found convinced that the date of cheque was 25/05/1998. When there is an alteration in the date of cheque, the crucial question to be considered is whether the alteration amounts to a material alteration or not. Here, the Bank Manager herself deposed that she was convinced that the date of cheque is 25/05/1998, though there is some correction in the date. The prosecution case is that the said correction was there at the time of issuing the cheque. Whether that case is true or not is the question to be considered. The accused himself admitted that Ext.P1 was the cheque given by him but on different purposes on 11/03/1997 but the date of cheque is 25/05/1998. As rightly pointed out by the court below, there is no correction to the date and month. Correction is only as to the digit '9' representing the particular decade. As regards the figure '98' corresponding to the year, the digit '8' is not at all corrected. The digit '9' alone is corrected. As rightly pointed out by the court below that means the correction was not make the **Crl.R.P.No.1043 of 2003** 6 presentation of the cheque within six months of the issuance of the cheque. Admittedly, the cheque was issued in the decade of 1990 to 1999 and not in the decade of 1980 to 1989. Hence, that correction is not material alteration and it is evident that correction was made by the person who issued the cheque itself. I concur with the above findings of the appellate court and I do not find any kind of perversity in the appreciation of evidence on the said contention. 6. As regards the contention that the cheque was issued as security, there is no evidence to show that it was issued as security or it was issued in blank as vaguely contended by the accused. Ext.D1 is a Promissory note said to have been given by the complainant and subsequently returned by the complainant to the accused. But that Promissory note also does not mention anything about Ext.P1 cheque. Thus, Ext.D1 Promissory note also does not render any help or assistance to prove Ext.P1 cheque was issued as a security. There is a presumption that cheque **Crl.R.P.No.1043 of 2003** 7 was issued in discharge of a legally enforceable debt or liability and that presumption stood unrebutted. 7. There is no illegality or impropriety in the impugned judgment under challenge and I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived at. Therefore, considering the scope of revisional jurisdiction under Section 397 and 401 of the Code of Criminal Procedure, there is no circumstance warranting interference under revisional jurisdiction. I confirm the findings of conviction. 8. Coming to the sentence, I am of the opinion that the substantive sentence of imprisonment imposed on the Revision petitioner is a little harsh and disproportionate with gravity and nature of the offence. 9. The Supreme Court, in the decision in **Kaushalya Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is **Crl.R.P.No.1043 of 2003** 8 sufficient to meet the ends of justice. Further, in **Vijayan vs. Baby (** 2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 10. In the light of the above decision, I am inclined to modify the sentence. The substantive sentence imposed by the court below will stand modified to simple imprisonment for one day till rising of the court. In supersession of the sentence imposed by the court below, the Revision petitioner will stand sentenced as follows: i) The Revision petitioner shall undergo simple imprisonment for one day till rising of the court. ii) The Revision petitioner shall pay a compensation of Rs.42,000/- (Rupees Forty Two thousand only) to the complainant/1[st] respondent. iii) In default of the payment of compensation, the **Crl.R.P.No.1043 of 2003** 9 Revision petitioner shall undergo simple imprisonment for three months. This Revision petition is allowed in part. **K.HARILAL, JUDGE.** **Stu** **//True copy//** **P.A to Judge.**