How to appreciate evidence in cheque dishonour case?

True that during the examination under Section 313,

Cr.P.C. the revision petitioner filed a statement to the effect that Ext.P1

cheque was issued due to the threat exerted by the Police personnel. It

is also evident that the revision petitioner has not adduced any evidence

at all either oral or documentary, to substantiate the said contention.

The appellate court found that the evidence tendered by PW1 was that

on the day the revision petitioner was summoned to the police station no

cheque was executed and it was after two days therefrom that the

revision petitioner executed and delivered Ext.P1 cheque. Even after the

receipt of the statutory notice the revision petitioner had not lodged any

complaint either against the Police officials or against the first

respondent. So also, it was not noticed that he had raised any grievance

against any police officer before the higher authorities. Ext.P1 cheque is

dated 20.11.2004 and when the said cheque was presented for

encashment it was dishonoured on the ground of insufficiency of fund in

the account maintained by the revision petitioner.        The said fact is

evident from Ext.P2 memo dated 16.3.2005 The said fact was intimated

as per Ext.P3. Ext.P6 would reveal that the lawyer notice was served on

the petitioner in 2005 itself. Even after receiving the lawyer notice the

revision petitioner did not initiate any legal action either against the



Police officials or against the first respondent. It is to be noted that

during the trial the revision petitioner would admit the delivery of Ext.P1

cheque and the signature and writing thereon.         In other words, the

revision petitioner had not disputed the execution of Ext.P1 cheque

before the trial court. In such circumstances, the oral testimony of PW1

was taken as sufficient by the courts below to prove the factum of

execution. The evidence of PW1 with Exts.P2 to P6, as discussed by the

courts below, would reveal that pursuant to the presentation of the

cheque in question for encashment it was dishonoured on the ground of

insufficiency of fund in the account maintained by the revision petitioner

and thereafter, the procedures mandatorily to be followed in view of with

the provisions under the Negotiable Instruments Act, were scrupulously

followed by the first respondent prior to the filing of the complaint. It is

taking into account all such aspects that the courts below arrived at the

finding that the first respondent succeeded in establishing that the

revision petitioner has committed the offence under Section 138 of N.I.

Act. 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT:

                MR.JUSTICE C.T.RAVIKUMAR

       TUESDAY, THE 24TH DAY OF FEBRUARY 2015

                            Crl.Rev.Pet.No. 232 of 2015 
                         

         ARUNKUMAR,  Vs  SATHYAKUMAR
       

            This revision petition is directed against the judgment in

Crl.A.No.434 of 2012 dated 16.10.2014 of the Court of Additional

Sessions Judge-I, Thrissur whereby and whereunder the conviction

entered against the revision petitioner for the offence under Section 138

of the Negotiable Instruments Act in C.C.No.1234 of 2008 of the Court

of Judicial First Class Magistrate-I, Thrissur was confirmed and the

sentence imposed therefor was modified. The case of the first

respondent/complainant was that Ext.P1 cheque issued by the revision

petitioner in discharge of a legally enforceable debt on its presentation

for encashment got dishonoured due to paucity of fund in the account

maintained     by    the    revision   petitioner.   Though    the   first

respondent/complainant issued statutory notice intimating the revision

petitioner regarding the factum of dishonour of the cheque and calling

upon him to pay the amount due the revision petitioner did not effect

payment of the amount covered by the cheque in question. It is in the

said circumstances that the complaint that ultimately culminated in the

registration of the aforesaid Calendar Case was filed. To bring home the


charge the complainant got himself examined as PW1 and got marked

Exts.P1 to P6. The revision petitioner who was examined under Section

313, Cr.P.C. after the closure of the evidence of the complainant denied

all the incriminating circumstances put to him and at the same time, filed

a statement to the effect that the cheque in question was obtained by

the first respondent from the Police Station when he was summoned to

the Police Station in connection with a complaint filed by the first

respondent. After appreciating the evidence the trial court found that

the first respondent has succeeded in establishing the factum of

commission of offence under Section 138 of the Negotiable Instruments

Act by the revision petitioner and consequently, convicted him

thereunder and sentenced to undergo simple imprisonment for a period

of one year and to pay a fine of ` 1,11,000/-. It was also directed that

out of the said amount of fine ` 1,06,000/- shall be given to the

complainant as compensation under Section 357(1) Cr.P.C. and in default

of payment of fine the revision petitioner was directed to undergo simple

imprisonment for a further period of six months. The revision petitioner

took up the matter in appeal as Crl.A.No.484 of 2012. The Court of

Additional Sessions Judge-I, Thrissur, the appellate court found the

contentions raised by the revision petitioner to mount challenge against

the conviction entered against him as meritless and consequently,

confirmed the conviction. However, the appellate court interfered with


the substantive sentence imposed against the revision petitioner and set

aside the same. For the conviction under Section 138 of the N.I. Act the

revision petitioner was sentenced to pay a fine of ` 1,99,810/- and in

default of payment of fine he was directed to undergo simple

imprisonment for a further period of six months. The amount of fine on

realisation was directed to be paid as compensation to the complainant

under Section 357(1) of Cr.P.C. The captioned revision petition has been

filed in the said circumstances.




             2. I have heard the learned counsel for the petitioner and

also the learned Public Prosecutor.




             3. As noticed hereinbefore, the courts below entered

conviction against the revision petitioner under Section 138 of the N.I.

Act concurrently. In such circumstances, there cannot be any doubt with

respect to the position that an interference in invocation of the revisional

jurisdiction is invited in case the revision petitioner brings out a case of

utter perverse appreciation of evidence or succeeds in showing that the

conclusions and findings of the courts below are totally against the

weight of evidence. Such interference is also permissible in case an error

in law is also brought out. In this case, the first respondent/complainant

deposed while being examined as PW1 perfectly in tune with his


allegations in the complaint. The case of the first respondent is that

Ext.P1 cheque was issued in order to discharge a personal liability of the

revision petitioner. True that during the examination under Section 313,

Cr.P.C. the revision petitioner filed a statement to the effect that Ext.P1

cheque was issued due to the threat exerted by the Police personnel. It

is also evident that the revision petitioner has not adduced any evidence

at all either oral or documentary, to substantiate the said contention.

The appellate court found that the evidence tendered by PW1 was that

on the day the revision petitioner was summoned to the police station no

cheque was executed and it was after two days therefrom that the

revision petitioner executed and delivered Ext.P1 cheque. Even after the

receipt of the statutory notice the revision petitioner had not lodged any

complaint either against the Police officials or against the first

respondent. So also, it was not noticed that he had raised any grievance

against any police officer before the higher authorities. Ext.P1 cheque is

dated 20.11.2004 and when the said cheque was presented for

encashment it was dishonoured on the ground of insufficiency of fund in

the account maintained by the revision petitioner.        The said fact is

evident from Ext.P2 memo dated 16.3.2005 The said fact was intimated

as per Ext.P3. Ext.P6 would reveal that the lawyer notice was served on

the petitioner in 2005 itself. Even after receiving the lawyer notice the

revision petitioner did not initiate any legal action either against the



Police officials or against the first respondent. It is to be noted that

during the trial the revision petitioner would admit the delivery of Ext.P1

cheque and the signature and writing thereon.         In other words, the

revision petitioner had not disputed the execution of Ext.P1 cheque

before the trial court. In such circumstances, the oral testimony of PW1

was taken as sufficient by the courts below to prove the factum of

execution. The evidence of PW1 with Exts.P2 to P6, as discussed by the

courts below, would reveal that pursuant to the presentation of the

cheque in question for encashment it was dishonoured on the ground of

insufficiency of fund in the account maintained by the revision petitioner

and thereafter, the procedures mandatorily to be followed in view of with

the provisions under the Negotiable Instruments Act, were scrupulously

followed by the first respondent prior to the filing of the complaint. It is

taking into account all such aspects that the courts below arrived at the

finding that the first respondent succeeded in establishing that the

revision petitioner has committed the offence under Section 138 of N.I.

Act. The petitioner could not bring out any ground so as to compel this

Court to exercise the revisional jurisdiction. In the said circumstances, I

do not find any legal infirmity or illegality warranting interferences with

the conviction concurrently entered against the revision petitioner by the

courts below. Hence, it is confirmed.


             4. For the conviction under Section 138 of the N.I. Act the

trial court sentenced the petitioner as aforesaid.         The substantive

sentence imposed by the trial court directing the revision petitioner to

undergo simple imprisonment for one year was set aside by the appellate

court. There cannot be any doubt with respect to the position that a

sentence must follow a conviction. In such circumstances and taking into

account the fact that the amount covered by the cheque in question was

` 1,06,000/- and the cheque in question was issued on 20.11.2014 the

revision petitioner was sentenced to pay a fine of ` 1,99,810/- and it was

ordered to be paid to the first respondent/complainant under Section 357

(1), Cr.P.C. Though paragraph 19 of the judgment of the appellate court

would reveal that the said figure was arrived at after calculating the

interest at the rate of 9% on the amount covered by the cheque in

question on considering all the aspects including the setting aside of the

substantive sentence to undergo imprisonment for one year I do not find

any reason to interfere with the sentence of fine imposed by the

appellate court. In the result, the sentence imposed on the revision

petitioner by the appellate court in substitution of the sentence imposed

by the trial court is also confirmed. When this Court was about to dismiss

the revision petition without any qualification, the learned counsel for the

revision petitioner sought some time to the revision petitioner to pay the

fine. In the interest of justice, the learned Magistrate is directed to keep


in abeyance the execution of the sentence for a period of eight months

so as to enable the revision petitioner to pay the amount within the

above stipulated period. In case of failure on the part of the revision

petitioner to pay the amount within the above stipulated period the

learned Magistrate shall take appropriate steps for the execution of the

sentence, forthwith. Needless to say that if any amount has already

deposited by the revision petitioner it shall be given credit towards the

fine amount.

             Subject to the above, this revision petition is dismissed.




                                                  Sd/-
                                           C.T.RAVIKUMAR
                                                 Judge