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YOOSUF versus THE STATE OF KERALA

High Court of Kerala

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YOOSUF v. THE STATE OF KERALA - Crl Rev Pet No. 2834 of 2006 [2006] RD-KL 523 (17 August 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2834 of 2006()

1. YOOSUF, S/O.MOOSA,
... Petitioner

Vs

1. THE STATE OF KERALA, REPRESENTED
... Respondent

2. SUCY PETER, W/O.LUCA PETER,

For Petitioner :SRI.V.JOHN SEBASTIAN RALPH

For Respondent :PUBLIC PROSECUTOR

Dated :17/08/2006

O R D E R

R.BASANT, J

Crl.R.P.No.2834 of 2006

Dated this the 17th day of August, 2006

ORDER

This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. The cheque is for an amount of Rs.72,000/-. The cheque when presented was dishonoured on the ground of insufficiency of funds. Notice of demand, though despatched by prepaid post in the correct address, was returned unserved. The complainant examined herself as PW1. Pws 2 & 3 bank officials were also examined. He proved Exts.P1 to P12. The accused did not adduce any defence evidence.

2. In the course of cross examination of PW1, no specific and definite defence was taken up by the petitioner though a suggestion was made that the cheque lost from the possession of the petitioner was received by the complainant. This is the only suggestion raised in the cross examination of PW1 to explain the possession of the cheque by the complainant. In the course of 313 examination also except blank denials, no specific stand was taken by the accused, who only contended that the cheque was issued not for the due discharge of any legally enforcible debt/liability. Crl.R.P.No.2834 of 2006 2

3. The courts below in these circumstances came to the concurrent conclusion that the 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.

4. 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 advanced a totally different contention. In para.5 of the Memorandum of Revision, it is contended that the cheque was not issued for the due discharge of any legally enforcible debt/liability. But transaction between the complainant and the accused is admitted. It is contended that the real transaction was only for Rs.10,000/- and that the cheque was handed over as a blank signed cheque as security when the parties entered into the earlier transaction. That blank signed cheque has been misutilised by the complainant to stake an untenable claim, it is now urged in the memorandum of revision.

5. The contention is not worthy of acceptance at all. The contention presently raised is not at all raised in the course of cross examination of the complainant or in the course of 313 examination of the accused. The petitioner had adduced no defence evidence also. The evidence of the complainant coupled with the admission of the signature made now clearly shows that the evidence of PW1 can Crl.R.P.No.2834 of 2006 3 safely be accepted. Totally incongruent and contradictory contentions raised by the petitioner is again one circumstance which will assure the courts of the acceptability of the oral evidence of PW1. As admitted now in the Memorandum of Revision, the cheque was handed over by the accused to the complainant with reference to a monetary transaction. This considerably takes away importance of the statement made by PW1 that the name of the payee was written in the cheque by a person at her request. In view of the statement now made that the cheque was handed over to the complainant by the petitioner, the fact that the name of the payee was written by the complainant or someone at her direction assumes no significance at all.

6. The evidence of the complainant as PW1 unmistakably establishes the execution and handing over of the cheque. The contradictory versions taken by the accused helps the court to accept the evidence of PW1 without any hesitation. Once execution and handing over of the cheque are established, the presumption under Section 139 of the N.I Act arises. No attempt whatsoever was made to discharge the burden to rebut the presumption. The courts below in these circumstances, I must hold, were eminently justified in coming to the conclusion that all ingredients of the offence punishable under Section 138 of the N.I Act have been established against the petitioner by the complainant. Crl.R.P.No.2834 of 2006 4

7. Notice of demand was returned unserved. Significantly there is not a whisper of a contention that the notice was not sent in the correct address. It was returned without service. The complainant must be held to have satisfied the requirement of Section 138 of the N.I Act having "given the notice of demand" to the petitioner. The learned counsel for the petitioner submits that there was an application to send the cheque to the handwriting expert. That petition was not considered favourably by the court, it is submitted. Signature in the cheque is admitted. The cheque is written on a cheque leaf issued to the petitioner by his bank to operate his account. Evidence of PW1 proves execution. Admittedly the name of the payee was not written in the handwriting of the petitioner. In these circumstances, I find no valid and tenable reason for which the cheque should have been sent to the expert. That application to forward the cheque to the expert was rightly rejected by the courts below in the circumstances which are revealed in this case.

8. No other contentions are raised on merits. The counsel then prays that the sentence imposed is excessive. The petitioner now faces a sentence of s.i for a period of 2 months. There is a further direction to pay an amount of Rs.72,000/- and in default to undergo s.i for a period of 3 months. I find merit in the prayer for leniency. Crl.R.P.No.2834 of 2006 5

9. 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 reported in Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but only subject to the requirement of adequately and justly compensating the victim, who has been compelled to fight two rounds of legal battle by now and to wait from 1997 for the redressal of his genuine grievances. The challenge raised can succeed only to the above extent.

10. 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.

11. In the result:

a) This Crl.R.P 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;

c) 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 a further amount of Rs.80,000/- (Rupees Eighty Thousand only) as compensation and in default to undergo S.I for a period of 45 days. If realised the entire amount shall be released to the complainant. Crl.R.P.No.2834 of 2006 6

12. The petitioner shall appear before the learned Magistrate on or before 31.10.2006 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.

(R.BASANT, JUDGE)

rtr/ Crl.R.P.No.2834 of 2006 7


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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