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SONY THOMAS v. MURUKESAN & ANR - Crl Rev Pet No. 3649 of 2006  RD-KL 1227 (17 October 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 3649 of 2006()
1. SONY THOMAS
1. MURUKESAN & ANOTHER
For Petitioner :SRI.P.JACOB VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3649 of 2006
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Dated this the 17th day of October, 2006
O R D E RThis revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.
2. The cheque is for an amount of Rs. 1,30,000/-. It bears the date 31.7.2002. The petitioner now faces a sentence of S.I. for a period of three months. There is a further direction to pay the actual cheque amount as compensation and in default to undergo S.I. for a period of one month.
3. The signature in the cheque is admitted. The notice of demand, though duly received and acknowledged, did not admittedly evoke any response. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused, who did not respond to the notice of demand, attempted to advance a contention in the course of the trial that the actual liability was only Rs.10,000/- Crl.R.P.No. 3649 of 2006 2 and that the said liability had been discharged also. A blank signed cheque was issued as security to the complainant. That cheque was not returned when the liability was discharged. The complainant is misutilising the said cheque to stake a totally false claim against the petitioner. The accused examined a friend of his as DW1 in support of this contention.
4. The courts below, in these circumstances, concurrently came to the conclusion that complainant has 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 challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner only reiterates the contention that was raised before the courts below. He further prays that leniency may be shown on the question of sentence. I find absolutely no merit in the contention raised.
6. We have the oral evidence of the complainant as PW1, about the circumstances under which Ext.P1 cheque admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account travelled Crl.R.P.No. 3649 of 2006 3 from the possession of the petitioner to that of the complainant. His evidence is eminently supported by the ability of the complainant to produce Ext.P1 cheque. I am satisfied that the oral evidence of PW1 deserves to be accepted. The last trace of doubt if any on this aspect is laid to rest when we consider the fact that the notice of demand though duly received and acknowledged did not admittedly evoke any response.
7. The evidence of DW1 cannot inspire confidence at all. The plea urged through DW1 is not urged in response to the notice of demand. The courts below rightly noted that the evidence of DW1 revealed that he has only hearsay information about the alleged transaction between the petitioner and the complainant. No reasonably prudent person with the available materials could have chosen to accept the evidence of DW1 in preference to that of PW1.
8. The learned counsel for the petitioner relies on Kamalamma v. C.K.Mohanan (2006 I.L.R. 710). He contends that the handing over of the cheque has not been proved satisfactorily. The courts below erred in assuming that the presumption under Section 139 of the N.I. Act is available to the petitioner. Crl.R.P.No. 3649 of 2006 4
9. The law is well settled that execution and handing over of the cheque has to be proved by the complainant. Section 138 of the Act can apply only to cheques drawn. It inevitably mean that proof of execution and handing over of the cheque must be offered by the complainant. Only when the complainant is shown to be the holder of the cheque, can he choose to claim the benefit of the presumption under Section 139. A mere possessor of the cheque is not the holder of the cheque. He must be entitled as per Section 8 of the Act to possess the cheque in his own name in order to bring him within the sweep of the expression holder in Section 8. In these circumstances the evidence of PW1 establishes execution and handing over of the cheque convincingly.
10. I have adverted to the circumstances which should persuade a court to accept the evidence of the complainant. The courts below committed no error in accepting the evidence of PW1. Once execution and handing over of the cheque is held to be proved by the evidence of PW1, the presumption under Section 139 of the N.I. Act arises and no attempt whatsoever has been made by the petitioner to discharge his burden to rebut the said presumption. The evidence of DW1 in this case is not sufficient Crl.R.P.No. 3649 of 2006 5 at all to discharge that burden or to prove that the petitioner is entitled to the benefit of any reasonable doubt. In these circumstances the decision cited supra cannot also help the petitioner.
11. The counsel then prays that leniency may be shown on the question of sentence. I find merit in the prayer for leniency. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I. Act in the decision in Anilkumar v. Shammy (2002 (3) KLT 852). In the facts and circumstances of the case, I do not find any compelling reasons which can persuade this court to insist on imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence, but subject to the compulsion of ensuring adequate and just compensation to the victim/complainant, who has been compelled to wait from 2002 and to fight two rounds of legal battle for the redressal of his genuine grievances. The challenge can succeed only to the above extent.
12. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent. Crl.R.P.No. 3649 of 2006 6
13. 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. ) 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 Section 357(3) Cr.P.C. to pay an amount of Rs.1,45,000/- (Rupees one lakh forty five thousand only) as compensation and in default to undergo S.I. for a period of two months. If realised the entire amount shall be released to the complainant.
14. The petitioner shall appear before the learned Magistrate on or before 30.12.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed. Crl.R.P.No. 3649 of 2006 7 (R. BASANT) Judge tm
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