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RAJARAM PRASAD v. STATE OF KERALA - Crl Rev Pet No. 3396 of 2006 [2006] RD-KL 1088 (12 October 2006)


Crl Rev Pet No. 3396 of 2006()

... Petitioner


... Respondent



For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :12/10/2006



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Crl.R.P.No. 3396 of 2006
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Dated this the 12th day of October, 2006


This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. 2 The cheque is for an amount of Rs.5,000/-. It bears the date 25.2.2002. The petitioner was sentenced by the trial court to pay a fine of Rs.5,000/- and in default to undergo S.I for a period of thirty days. In the appeal preferred by the petitioner against the verdict of guilty, conviction and sentence, the appellate court surprisingly appears to have modified the sentence to the prejudice of the petitioner, directing him to undergo imprisonment till rising of court and to pay an amount of Rs.5,000/- and in default to undergo S.I. for a period of two months.

3. The signature in the cheque is not disputed. Notice of demand though duly received and acknowledged did not evoke any Crl.R.P.No. 3396 of 2006 2 response. The complainant examined himself as PW1 and his wife as PW2. He proved Exts.P1 to P6. The accused, in the course of the trial, appears to have taken up conflicting and confusing defences. It was contended that before the cheque was presented, Ext.D2 notice had been sent by the accused to the complainant, complaining about retention of four signed blank cheques by the complainant. The complainant was called upon not to present those cheques. Ext.P1 cheque, in respect of which this prosecution is launched, has no reference at all to the four cheques referred to in Ext.D2. In respect of Ext.P1 cheque also, the accused appears to have advanced a defence. His version is that the complainant's wife, PW2, had handed over to the complainant a gold ornament, which was pledged before the complainant by some other person. This was done by PW2 without informing the complainant. When the complainant came to know about it, the complainant compelled the petitioner to pay an amount of Rs.9,000/- by a cheque. The said cheque was encashed by the complainant. A blank signed cheque had been handed over to the wife of the complainant by the petitioner. After realising the amount of Rs.9,000/- the complainant was now staking a false claim on the basis of the said blank signed cheque Crl.R.P.No. 3396 of 2006 3 handed over to PW2, the wife of the complainant. This, it appears, is the attempt made in the course of the trial. The petitioner examined DWs. 1 to 4 and proved Exts. D1 to D3. DW1 is the Bank Manager and Ext.D1 is the passbook issued by him to the petitioner. Ext.D3 is the copy of the ledger maintained by the bank in respect of that account. The attempt by examining DW1 and the production of Exts.D1 and D3, it would appear, is to contend that an amount of Rs.9,000/- had been paid to the complainant. In support of this the only piece of evidence is that there is an entry in Ext.D3 that a cash cheque in the name of the complainant for Rs.9,000/- had been encashed. The complainant submitted that no such payment was made at all to him. The petitioner did not take any steps to summon the cheque concerned to convince the court that the said cash cheque, in which the complainant is allegedly shown as the payee, was in fact encashed by him and not the petitioner or other nominee of his. DW2 is the brother-in- law of the complainant. He did not support the case of the petitioner. DW3 is an autorikshaw driver, who had allegedly gone with the complainant when he encashed the said cash cheque for Rs.9,000/- DW4 is the accused himself. Crl.R.P.No. 3396 of 2006 4

4. The courts below, on an anxious consideration of all the relevant inputs, concurrently came to the conclusion that the complainant had, succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I. Act. Accordingly, they proceeded to pass the impugned concurrent judgments.

5.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 submits that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but was issued to PW2 as security when she, contrary to the interests of PW1, handed over to the petitioner a gold ornament pledged with PW1 by somebody else. Surprisingly and significantly this version is not at all advanced in reply to the notice of demand, which was duly received and acknowledged by him. Sending Ext.D2 earlier cannot obviously be a justification for not responding to the notice of demand as admittedly Ext.D2 does not at all refer to Ext.P1 cheque. The story advanced by the accused - of his transaction with the wife of the complainant has been denied by her as PW2. It passes ones comprehension as to why PW2 should hand over a Crl.R.P.No. 3396 of 2006 5 gold ornament pledged with PW1 by somebody else to the petitioner for sale. The very version rebels against reason, logic and common sense. No attempt is made to satisfactorily establish the said plea. The evidence of DW3, to say the least, is perverse. The explanation of the accused as DW4 cannot be swallowed by any prudent mind even with tonnes of salt. I am, in these circumstances, satisfied that there is absolutely no merit in the contention raised by the petitioner. The challenge on merits must fail.

6. I find merit in the challenge raised against the sentence. In an appeal against conviction and sentence by an accused person, the law does not authorise an appellate court to alter the sentence to the prejudice of the accused. That is exactly what the appellate court in this case has done. I am satisfied that modification of the sentence by the appellate Judge deserves and warrants interference. The sentence imposed by the trial court deserves to be restored as requested by the counsel for the petitioner.

7. In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld. Crl.R.P.No. 3396 of 2006 6 ) But the sentence imposed by the appellate court is set aside and the sentence imposed by the trial court is restored.

8. The petitioner shall appear before the learned Magistrate on or before 30.11.2006, if the fine amount is not paid by them, for execution of the default sentence. The Registry shall communicate this order to the trial court forthwith. (R. BASANT) Judge tm


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