Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 19TH DAY OF JUNE 2023 / 29TH JYAISHTA, 1945 AGAINST THE ORDER/JUDGMENT IN ST 146/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, KANJIRAPPALLY CRA 386/2013 OF ADDITIONAL DISTRICT COURT,KOTTAYAM REVISION PETITIONER/S: RAMACHANDRAN S/O.GOPALAN, KANNAMALA HOUSE, MANALUMKAL P.O., AKALAKUNNAM VILLAGE. BY ADVS. SRI.LIJI.J.VADAKEDOM SRI.RAJEEV JYOTHISH GEORGE RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 GOPALAN A.K. S/O.KUMARAN, ADACKAMUNDAKUZHY HOUSE, MANALUMKAL P.O., AKALAKUNNUAM VILLAGE. BY ADVS. PUBLIC PROSECUTOR SRI.P.C.HARIDAS P.C.HARIDAS OTHER PRESENT: SR.PP.RENJITH GEORGE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Dated this the 19th day of June, 2023 The revision petitioner is the accused in S.T No.146 of 2012 of the
Judicial First Class Magistrate Court-III, Kanjirappally. The case originated from a complaint filed by the 2 nd respondent. In his complaint, the 2nd respondent alleged that the revision petitioner borrowed an amount Rs.1,00,000/- from him and later issued a cheque for the same amount towards discharge of the liability. The cheque, on presentation, was dishonored for insufficiency of funds. Despite issuance of statutory notice, revision petitioner did not pay the amount.
2.The trial court, on appreciation of evidence and consideration of
the legal contentions, found the petitioner guilty and thereupon, convicted and sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs.1,00,000/- with 6% interest from 23.09.2011 till date of judgment, amounting to Rs.1,12,500/- . On realization, the amount was directed to be paid to the complainant as compensation under Section 357(3) Cr.P.C.
3.In the appeal filed against the judgment, the appellate court refused to interfere with finding of guilt and conviction, but modified the sentence of fine to Rs.1,00,000/-, with default sentence of one month. Aggrieved, this revision petition is filed. 4.Learned Counsel for the revision petitioner contended that the
trial and appellate courts judgments are bound to be set aside for the sole reason that the judgments were rendered without affording proper opportunity to the revision petitioner to set up his defence. In elaboration of the contention it is submitted that, in his proof affidavit and during cross examination, the complainant had asserted that the cheque was filled up, signed and handed over by the revision petitioner. Hence, a petition was filed under Section 243 Cr.P.C to send the cheque to an expert to prove that the entries in the cheque were not made by the revision petitioner. That petition was dismissed by the trial court by Annexure 1 order. Had the petition been allowed and expert opinion obtained to the effect that the entries in the cheque were not in the petitioner’s handwriting, that would have helped the petitioner in bolstering his defence and rebutting the presumption under Section 139 of Negotiable Instruments Act(‘the N.I Act’ for short). In support of this contention, reliance is placed on the decisions in Bindu v. Sreekantan Nair [2007 KHC 3400] and Raveendran Pillai v. Jomon P Varghese & Another [(2014) SCC Online Ker 761] . Therefore, interest of justice demands that the matter be remanded with a direction to obtain expert opinion regarding the entries in the cheque.
5. Learned Counsel for the respondent stoutly opposed the prayer
for remand and submitted that Annexure A1 order of trial court dismissing the petition seeking expert opinion was not challenged by the petitioner. Instead, he filed another petition under Section 73 of the Evidence Act, requiring the court to make the comparison. That petition was also rejected by the trial court and the decision has attained finality. As such the revision petitioner cannot be permitted to re- agitate the issue at this stage. In addition, it is submitted that the appellate court found petitioner’s defence, to be improbable, since the defence set up the statement under Section 315 was that the petitioner had borrowed Rs.10,000/- in the year 1990 and the cheque given as security for the said amount was misused by the complainant. The appellate court found that as per Exhibit P1 statement of accounts, the cheque book from which the cheque leaf was taken was issued only in the year 1992.
6. On careful scrutiny of the trial and appellate court judgments,
I find no reason to interfere with the concurrent findings therein. It is settled law that the presumption under Section 139 of N.I Act can be rebutted based on preponderance of probabilities and by relying on the inconsistencies in the complainant’s evidence. In the case at hand, the petitioner had made an attempt to bring out such inconsistency by submitting a petition for sending the cheque to an expert. The petitioner did not pursue the attempt, after his petition got dismissed as per Annexure A1. Instead, the petitioner submitted a petition under Section 73 of the Evidence Act, calling upon the court to make the comparison. That petition was also rejected and attained finality in the absence of any challenge. Additionally, the appellate court found the defence to be improbable, as the cheque in question was issued from the bank in the year 1992, while the petitioner’s defence was the cheque was issued as security for an amount borrowed in the year 1990.
In the result, the revision petition is dismissed. The revision
petitioner is granted three months time for paying / remitting the compensation amount of Rs.1,00,000/- failing which he shall under go simple imprisonment for month. The petitioner shall pay / remit the compensation amount and appear before the trial court, for undergoing the sentence of imprisonment till rising of the court, within the three months. Coercive action, if any initiated against the petitioner, shall be kept in abeyance for three months.
Sd/- V.G ARUN JUDGE SJ APPENDIX OF CRL.R.P NO.356/2015 APPELLANT ANNEXURE ANNEXURE-I THE CERTIFIED COPY OF THE ORDER DATED 10.07.2013 IN CMP 708/2013 IN ST NO.146/2012 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT -III, KANJIRAPPALY