U. Pavithran v. Vaiju Krishnan and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 Crl.Rev.Pet.No. 1601 of 2010() -----------------------------CRA.21/2007 of SESSIONS COURT, KALPETTA STC.466/2004 of JUDICIAL MAGISTRATE OF FIRST CLASS , KALPETTA. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- U.PAVITHRAN, S/O.A.K.NANU, KAKKANILAYAM, B.STREET, THALASSERY ROAD, MANANTHAVADY P.O., MANANTHAVADY TALUK, WYNAD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. SRI.VAIJU KRISHNAN, S/O.KRISHNAN, CHETTATHUPARAMBIL, PATHIRIPALAM, KOLANGAPPARA P.O., BATTERY TALUK, WYNAD DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 by P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.R.P. No. 1601 OF 2010 ----------------------------------------** Dated 24[th] Day of May, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed by the trial court as well as the lower appellate court. 2. The allegation against the revision petitioner is that he had borrowed a sum of Rs.50,000/- from the complainant and towards the discharge of the said liability, he had issued a cheque dated 3.3.2003 for an amount of Rs.50,000/- which when presented for encashment returned as dishonoured since there was no sufficient funds in the account maintained by the revision petitioner/accused. Consequently, after complying with the statutory requirements, the complainant approached the trial court by filing a complaint which was taken on file upon which cognizance was taken for the offence under section 138 of Crl.R.P.1601/10 **-:2:-** the N.I.Act and accordingly, STC No.466/2004 was instituted. During the course of the trial, the complainant adduced evidence which consists of the oral evidence of P.Ws1 and 2 and documentary evidence such as Exts.P1 to P6. Neither documentary, nor oral evidence was adduced from the side of the defence. On the basis of the materials and evidence produced by the complainant, the trial court has found that the complainant has established his case and the revision petitioner/accused committed the offence punishable under section 138 of the NI Act. Accordingly the trial court convicted the accused under section 138 of the NI Act and he is sentenced to undergo simple imprisonment for three months and ordered to pay compensation of Rs.75,000/-. The default sentence is fixed as simple imprisonment for one month. Challenging the above conviction and sentence, though an appeal was filed, by judgment dated 27.3.2010 in Crl.A.No.21/2007, the Sessions Court, Wayanad, Kalpetta, while confirming the conviction and maintained the sentence Crl.R.P.1601/10 **-:3:-** of imprisonment awarded by the trial court, the amount of compensation ordered by the trial court is converted into a fine of Rs.50,000/- and it was further directed that in default of payment of fine, the revision petitioner shall undergo simple imprisonment for another one month. It is also ordered that if the fine amount is realised, the same shall be paid to the complainant as compensation under section 357(3) Cr.P.C. It is the above conviction and sentence imposed against the revision petitioner challenged in this Revision. 3. I have heard Sri T.G.Rajendran, the learned counsel appearing for the revision petitioner and I have also perused the impugned judgments of the courts below. 4. The learned counsel submitted that except the claim of the complainant that the accused had borrowed an amount of Rs.50,000/- there is no pleadings and no particulars regarding the transaction were furnished by the complainant, either in the complaint or in the form of evidence. The above submission based upon the facts involved in the case which Crl.R.P.1601/10 **-:4:-** was considered and appreciated by the fact finding authorities like the trial court as well as the lower appellate court. The above contention of the revision petitioner was rejected by the courts below. Even according to the counsel for the revision petitioner, the accused did not dispute the transaction between the complainant and himself. Therefore, the execution and issuance of the cheque in question was also not disputed by the defence. When the transaction, though not as claimed by the complainant, admitted by the accused and especially when the execution and issuance of the cheque is admitted by the accused, it is heavily cast upon the accused to establish his case in order to effectively challenge the presumption available in favour of the complainant and thereby to discharge the burden of the revision petitioner to rebut the presumption. But it is an admitted fact that no evidence is adduced by the revision petitioner to challenge the case put forth by the complainant. In the absence of any evidence, it cannot be held that the revision Crl.R.P.1601/10 **-:5:-** petitioner/accused had discharged his burden in rebutting the presumption which is available to the complainant by virtue of Section 139 of the N.I.Act. Under the above factual and legal scenario, I find no reason to interfere with the concurrent finding arrived on by the courts below. Therefore, there is no merit in the Crl.R.P. 5. The learned counsel for the revision petitioner submitted that a breathing time my be granted to the revision petitioner to deposit the fine amount as ordered by the lower appellate court. It is also the contention of the learned counsel that when compared with the amount involved in the transaction, the sentence of imprisonment awarded by the lower appellate court and the trial court is excessive and exorbitant. Therefore, it is submitted that a lenient view may be taken in the matter of sentence also. 6. I have carefully considered the above submission of the learned counsel for the revision petitioner. In this juncture it is pertinent to note that the cheque in question is dated Crl.R.P.1601/10 ## **-:6:-** 3.3.2003 for an amount of Rs.50,000/-. The cheque was issued in discharge of a loan availed by the accused much earlier to that. Therefore, while reducing the sentence of imprisonment, I am of the view that the fine amount fixed by the lower appellate court can be enhanced to the tune of Rs.80,000/- and the revision petitioner can be granted three months time to make the payment, which will be sufficient to meet the ends of justice, especially, in the light of the decision of the Apex Court in **Damodar S. Prabhu v. Sayed Babalal H** (J.T.2010(4) SC 457). 7. In the result, this Crl.R.P is disposed of confirming the conviction imposed against the revision petitioner under section 138 of the NI Act by the trial court as well as the lower appellate court. The sentence imposed against the revision petitioner is modified by reducing the sentence of simple imprisonment into imprisonment till the rising of the court and at the same time enhancing the fine amount to the tune of Rs.80,000/- and in default of payment of fine amount, the Crl.R.P.1601/10 **-:7:-** revision petitioner is directed to undergo simple imprisonment for a period of 3 months. 8. The learned counsel for the revision petitioner submitted that the revision petitioner has already deposited a sum of Rs.17,500/- in terms of the conditional order passed by the lower appellate court while suspending the sentence at the time of admitting the appeal. If the said amount is remaining in the trial court, the revision petitioner needs to deposit only the balance amount out of Rs.80,000/- being fine amount now fixed by this Court. On realisation of the fine, the entire amount shall be paid to the complainant under section 357(3) Cr.P.C. Accordingly the revision petitioner is directed to appear before the trial court on 28.8.2010 to receive the sentence and to make the deposit of fine amount. If there is any failure on the part of the revision petitioner in appearing before the court below as directed above, it is for the trial court to take appropriate coercive steps for procuring the presence Crl.R.P.1601/10 ## **-:8:-** of the revision petitioner and to execute the sentence including the realisation of the fine amount. **The Crl.R.P is disposed of as above.** **V.K.MOHANAN, JUDGE** kvm/- Crl.R.P.1601/10 ## **-:9:-** **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** Dated:..