Thressiamma Shine v. Nazar K.M. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932** **Crl.Rev.Pet.No. 2332 of 2010(B)** **-------------------------------------------[CRL.A.NO.106/2007 OF IVTH ADDITIONAL SESSIONS COURT (ADHOC-II), THODUPUZHA, ST.NO.42/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA]** **....................** ## **PETITIONER/APPELLANT/ACCUSED:** **-----------------------------------------------------** **THRESSIAMMA SHINE, PARAKATTEL HOUSE, MYLACOMBU POST, THODUPUZHA.** **BY ADV. SRI.MATHEW JOHN (K).** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** **---------------------------------------------------------------------------------------** **1. NAZAR.K.M., KARIKUMPARAMBIL HOUSE, THODUPUZHA P.O., THODUPUZHA, 685 584.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 31.** ## **R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **prv.** ## **V.K.MOHANAN, J.** **---------------------------------------Crl.R.P. No. 2332 OF 2010 ----------------------------------------** Dated the 10th Day of August, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.1,50,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 8.11.2005 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, initially, the complainant approached the court of Chief Judicial Magistrate, Thodupuzha by filing a formal complaint under CRL.R.P.No. 2332/10 **-:2:-** section 138 of the NI Act, which was taken on file C.C.No.204/2006. Subsequently, the case was made over to the Judicial First Class Magistrate-II, Thodupuzha wherein the case was renumbered as S.T.No.42/2006. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. From the side of the defence, DWs 1 and 2 were examined and also produced Ext.D1. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of 2 months and to pay compensation of CRL.R.P.No. 2332/10 **-:3:-** Rs.1,60,000/- to the complainant under Section 357(3) Cr.P.C. The default sentence fixed is 2 months simple imprisonment. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 30.1.2010 in Crl.A.No.106/2007, the court of IVth Addl.Sessions Judge, (Adhoc-II), Thodupuzha, dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. The learned counsel for the revision petitioner vehemently argued that the courts below committed wrong in believing the case of the complainant and giving the benefit of statutory presumption in favour of the complainant solely for the reason that Ext.P1 cheque contained the signature of the revision petitioner/accused. It is the further case of the learned counsel that the accused has rebutted the presumption by advancing a probable evidence including the evidence of the accused person examined as DW2 and also the evidence of DW1, the bank manager and Ext.D1 CRL.R.P.No. 2332/10 **-:4:-** statement of the accused. It is the contention of the learned counsel that a conjoined reading of the evidence of DW1 and Ext.D1 would show that Ext.P1 cheque was obtained from the bank by the revision petitioner years back and the same cannot be treated as part of the transaction claimed by the complainant on 1.5.2005. According to the learned counsel, the specific case set up by the defence is to the effect that the cheque in question was entrusted with the complainant by the husband of the revision petitioner when her husband borrowed a loan of Rs.10,000/- from the complainant. Thus according to the learned counsel, the revision petitioner/accused has no transaction with the complainant and it is unbelievable that the complainant has parted huge amount of Rs.1,50,000/- to the revision petitioner without a scrape of paper. Therefore, according to the learned counsel, the findings of the courts below are liable to be dismissed. 4. I am unable to approve the above contention. It is true that the courts below mainly relying upon Ext.P1 CRL.R.P.No. 2332/10 **-:5:-** cheque which contained the signature of the accused to come into a conclusion in favour of the complainant. In this juncture, it is relevant to note that the Apex court has held in several occasions that mere denial of the transaction or the execution of the cheque is not sufficient to rebut the presumption , which is otherwise available in favour of the complainant. In the present case, the specific case of the complainant is that both the revision petitioner/accused and her husband approached the complainant for a loan for his business purpose and towards the said transaction, the accused issued the cheque in question. The above version of the complainant, according to the court below is substantiated through his deposition supported by documentary evidence like Ext.P1 cheque itself. It is relevant to note that this court, in **Johnson Scaria v. State of Kerala (2006 (4) KLT 290),** has held: “The burden is always on the prosecution to prove the offence against an indictee in all prosecutions and a prosecution under section 138 of the N.I.Act CRL.R.P.No. 2332/10 **-:6:-** is no exception to that general rule. Execution and issue of the cheque have to be proved to draw the presumption under S.139 and S.139 does not shift the burden to prove execution and issue of the cheque. Admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue. But under S.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 explanations offered” To contradict the version of the complainant that the accused issued the cheque in question towards the transaction claimed by the complainant, no evidence is adduced by the revision petitioner or nothing claimed to have elicited from the evidence of the complainant. 5. In the present case, the claim of the complainant is that the amount was obtained on 1.5.2005 and the post dated cheque was issued on 3.11.2005. Hence, Ext.P1 cheque bearing the date 8.11.2005. The revision petitioner has failed CRL.R.P.No. 2332/10 ## **-:7:-** to establish or probablise her case that the loan was obtained by her husband from the complainant and her husband gave the cheque to the complainant. In order to rebut the presumption, the revision petitioner is not expected to establish her case beyond reasonable doubt but certainly she is bound to establish a reasonable and probable case. There is no material, at least to probablise the case of the revision petitioner in this respect. The trial court as well as the lower appellate court which are the fact finding authorities after appreciation of the evidence and materials on record found that Ext.P1 cheque was issued by the accused towards the discharge of the liability that connected with the transaction claimed by the complainant. So I find no reason to interfere with the said concurrent findings. 6. As this Court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that some time may be granted to the revision petitioner to pay the amount and also submitted that the sentence of imprisonment awarded by the CRL.R.P.No. 2332/10 **-:8:-** courts below are unreasonable and a lenient view may be taken in the matter of the sentence. 7. Having regard to the facts and circumstances involved in this case, I am of the view that the said submission can be considered favourably but subject to other facts and circumstances involved in tis case. As per the records, the cheque in question is dated 8.11.2005, that too for an amount of Rs.1,56,000/- and as per findings of the courts below, which approved by this court, the said amount is belonging to the complainant. It is also relevant to note that even according to the complainant, the loan was taken for the business purpose of the husband of the revision petitioner and the revision petitioner is a house wife. The Apex Court, in its recent decision in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above settled legal position and in view of the facts and c circumstances, I am of the view that the sentence of CRL.R.P.No. 2332/10 **-:9:-** imprisonment ordered by the courts below can be modified and reduced to one day imprisonment. But at the same time, compensation amount ordered by the courts below can be enhanced slightly and the revision petitioner can be granted some time to pay the amount. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the revision petitioner under section 138 of the NI Act. Accordingly, the sentence of imprisonment ordered by the courts below is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment for one day i.e., till the rising of the court. She is also directed to pay a sum of Rs.1,70,000/- within three months from today as compensation to the complainant under section 357(3) Cr.P.C , and in default in paying the amount, she is directed to undergo simple imprisonment for a further period of 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on **10th November, 2010** to receive the sentence and to pay the compensation amount. CRL.R.P.No. 2332/10 ## **-:10:-** If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure her presence and to execute the sentence. Coercive steps if any taken against the revision petitioner shall be kept in abeyance till **10.11.2010** This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.No. 2332/10 ## **-:11:-** kvm/- O.P.No. **JUDGMENT** ## CRL.R.P.No. 2332/10 ## **-:12:-** Dated:..