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2006 DIGILAW 712 (KER)

N. K. Shaji v. E. V. Joshy

2006-10-18

R.BASANT

body2006
Judgment :- 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. 2. The cheque is for an amount of Rs.70,000/-. It bears the date 1.10.2003. The petitioner now faces a sentence of S.I. for a period of six months. There is also a direction to pay the actual cheque amount of Rs. 70,000/- as compensation and in default to undergo S.I. for a further period of two months. 3. The signature in the cheque is admitted. The notice of demand, though addressed in the correct address of the petitioner, was returned unclaimed and did not admittedly succeed in securing payment. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused, in the course of the trial, attempted to advance a contention that the cheque was not issued for the due discharge of any legally enforcible debt/liability. He took up a defence which appears to me to be strange. He contended that PW1, along with DW3, were co-producers of a music album, in which the petitioner was requested to render songs by whistling. He is said to be an expert in that art form. According to him, PW1 insisted when the said arrangement was struck that two blank signed cheques and a signed blank paper must be given by the petitioner to PW1 in order to secure his interests. The suggestion appears to be that PW1 apprehended that the petitioner may make himself scarce and unavailable to complete the project. It was hence that the petitioner was compelled to part with two signed blank cheques, of which one was allegedly misutilised by the complainant to stake the present untenable and false claim against the petitioner. He examined himself as DW1 and a person as DW2, who claimed to be the P.R.O. in the project of releasing the music album. DW3 is another person, who, according to the petitioner, was the co-producer of the music album. Mos 1 and 2 were produced. They are the C.D. cassette and audio cassette in which PW1 is described as a co-producer along with DW3. 4. DW3 is another person, who, according to the petitioner, was the co-producer of the music album. Mos 1 and 2 were produced. They are the C.D. cassette and audio cassette in which PW1 is described as a co-producer along with DW3. 4. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I. Act and that the petitioner has not succeeded in proving or probabilising his case. 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 contentions that were raised before the courts below. He asserts that there is no satisfactory evidence to prove that the cheque was issued for the due discharge of any legally enforcible debt/liability. 6. I have heard the learned counsel for the petitioner at length. I have been taken through the evidence available in the case. Primarily we have the oral evidence of 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 from the possession of the petitioner to that of the complainant. His evidence is eminently supported by his ability to produce Ext.P1 cheque. There are indications – convincing according to me, to suggest that the petitioner did not deliberately receive the notice of demand addressed to him by pre-paid post in the correct address. 7. The crucial question is whether the oral evidence of PW1 about the execution and handing over of the cheque can be accepted or not. The evidence of DWs. 1 to 3 are pressed into service by the learned counsel for the petitioner to contend that PW1's evidence about execution and handing over should not be believed or at any rate to hold that reasonable doubt exists about the circumstances under which the cheque, Ext.P1, was received by PW1. At least the benefit of doubt must have been conceded to the petitioner on that crucial aspect, it is contended. 8. The learned counsel for the petitioner contends that the burden to prove that the cheque was handed over by the petitioner to the complainant rests squarely on his shoulders. At least the benefit of doubt must have been conceded to the petitioner on that crucial aspect, it is contended. 8. The learned counsel for the petitioner contends that the burden to prove that the cheque was handed over by the petitioner to the complainant rests squarely on his shoulders. It is for the complainant to prove that he was the holder of the cheque, in which event only the presumption under Section 139 of the N.I. Act arises. I am in total agreement with the learned counsel for the petitioner on this proposition of law. The burden must rest squarely on the complainant to prove that the cheque was duly executed and handed over by the indictee to him. In establishing this fact the presumption under Section 139 cannot enure to the benefit of the complainant. The presumption under Section 139 would arise only when it is shown that the cheque is duly executed and handed over to the complainant. In short it must be shown that the complainant is a holder falling within the sweep of that expression under Section 8 of the N.I. Act. The benefit of doubt if any on this aspect will certainly enure to the advantage of the indictee. The presumption under Section 139 cannot be pressed into service to prove due execution and handing over of the cheque. 9. The question then is whether there is satisfactory evidence to prove execution and handing over of the cheque. The evidence of PW1, his ability to produce Ext.P1 cheque and the fact that the notice of demand was not received and replied to are the circumstances in favour of PW1. 10. As against this, the learned counsel for the petitioner places reliance on the oral evidence of DWs. 1 to 3 and MOs. 1 and 2. He further relies on Ext.P1 cheque, in which the entries other than the signature are type written. These circumstances, the learned counsel contends, are at any rate sufficient to generate a reasonable doubt on the initial case of the complainant that the cheque was duly executed and handed over by the petitioner to the complainant. 11. Before considering the rival contentions on this aspect, I have repeatedly referred to the caution and reservation which must inform courts while considering a plea that a blank signed cheque was handed over by the accused to the complainant. 11. Before considering the rival contentions on this aspect, I have repeatedly referred to the caution and reservation which must inform courts while considering a plea that a blank signed cheque was handed over by the accused to the complainant. It has been repeated many times that if the laudable commercial morality which the Legislature seeks to usher in by introduction of Section 138 in the Statute Book were to prevail among the polity the account holders cannot be permitted to deal with the cheques issued to them in a casual, indifferent, playful and perverse manner. A defence that the cheque was issued without responsibility as a blank signed cheque may still not be impossible or impermissible in a prosecution under Section 138, but while appreciating the evidence no court can afford to ignore the fact that the accused is attempting to attribute to himself totally irresponsible conduct to justify a claim for absolution from culpable liability, which he has got to face otherwise. This reality cannot be lost sight of. A ready and easy acceptance of such a defence would stultify and frustrate the legislative objectives which persuaded the Legislature to introduce such amendment. 12. We now consider the question whether the petitioner was under any such compelling circumstances as to oblige PW1 by handing over signed blank cheques. According to the petitioner, he did not expect anything in turn from PW1. PW1 was actually allegedly furthering his own interest by investing amounts and requesting the petitioner to oblige him by agreeing for the whistling performance. If at all, the petitioner was obliging PW1 and not vice versa. 13. Even going by the version of the petitioner, the petitioner is not such an expert whistling performer that PW1 could have justifiably apprehended that he may not co-operate till the alleged venture is completed. Even going by the version of the petitioner as DW1 this was his maiden performance in an audio/CD player. The assumption that PW1 apprehended that DW1 may not make himself available till the project is complete rebels against reason, logic and common sense. The fact that the petitioner as DW1 and an obliging DWs. 2 and 3 repeated those assertions on oath cannot enhance their credibility on probabilities. The version advanced is thus found to be inherently uninspiring. 14. I have been taken through the evidence of DWs. 2 and 3 in detail, DWs. The fact that the petitioner as DW1 and an obliging DWs. 2 and 3 repeated those assertions on oath cannot enhance their credibility on probabilities. The version advanced is thus found to be inherently uninspiring. 14. I have been taken through the evidence of DWs. 2 and 3 in detail, DWs. 2 and 3 admit that they are not aware of the financial transactions between the petitioner and PW1. Their version about the handing over of the signed blank cheque by the petitioner to PW1 is found to be inherently uninspiring. At any rate, the interested version of DWs. 1 to 3 is not sufficient to offset the balance of probabilities in favour of the evidence of PW1. I am of the opinion that the courts below committed no error in placing reliance on the oral evidence of PW1, which on probabilities competes admirably with and outweighs convincingly the version of DWs.1 to 3. Any prudent mind, whose standards the courts are to follow as mandated under section 3 of the Evidence Act can safely and beyond reasonable doubt accept and act upon the evidence of PW1. That is what the courts below have done and I find no reason at this third tier of litigation to invoke the revisional jurisdiction of superintendence and correction to interfere with such a finding of fact. I may hasten to clarify that to decide whether PW1's evidence can be accepted or not, no assistance is taken from the presumption under Section 139. 15. Once the execution and handing over of the cheque is held to be proved by the evidence of PW1, the presumption under Section 139 arises and the burden shift to the shoulders of the petitioner to prove that the cheque was not issued for the discharge of any legally enforcible debt/liability. Satisfactory evidence to discharge that burden has not been adduced. The evidence of DWs. 1 to 3 is insufficient to shift the burden back to PW1. In these circumstances I come to the conclusion that the challenge against the verdict of guilty and conviction cannot succeed. 16. 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). 16. 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 2003 and to fight two rounds of legal battle for the redressal of his genuine grievances. The challenge can succeed only to the above extent. 17. 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. 18. 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. (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 an amount of Rs.85,000/- (Rupees eighty five thousand only) as compensation and in default to undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant. 19. The petitioner shall appear before the learned Magistrate on or before 16.12.2006 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.