G. Mohana Kurup vs State of Kerala and Prasannakumar, Sreeramajayam Veedu also Known as Punnamoottil Kandalloor Vadakkum Muri

N.K. Balakrishnan, J.—The challenge in this revision is the concurrent verdict of conviction entered in a case filed under Sec. 138 of N.I.

Act. The sentence was modified by the appellate court to S.I. for one month and to pay Rs. 1 lakh, the cheque amount, as compensation to the

complainant. The Learned Counsel for the revision petitioner submits that the courts below failed to take note of the fact that the petitioner had

filed a petition before the trial court to summon Soman, Thekkaduthu Kuries, P.O. Kandalloor, from whom PW1 was stated to have obtained

money. That summons was returned with the endorsement ''not known''. Therefore, according to the petitioner, the contention that there was one

Soman, who was conducting Thekkaduthu Kuries and it was from him the complainant obtained money for lending the same to the petitioner

herein cannot be accepted. It is further submitted that since the accused denied the execution of cheque, the burden is entirely on the prosecution

to prove the execution of cheque and so even if the accused could not prove the case pleaded by him beyond reasonable doubt that will not come

to the rescue of the complainant to get a verdict in his favour. The Learned Counsel submits that the specific case advanced by the accused is that

he had obtained Rs. 10,000/- (Rupees ten thousand only) from one Anilkumar (DW1) and at that time a signed blank cheque leaf was given to him

and later that cheque leaf was handed over by DW1 to the complainant and based on that document this case has been foisted against the

petitioner.

Learned Counsel for the respondent/complainant submits that there is no case for the petitioner that the accused is not a man of no means or

that he is not having sufficient fund to advance the amount to the accused. The complainant is an Ayurvedic Doctor and he has also given evidence

that he was having sufficient money. Therefore, according to the Learned Counsel for the respondent, even if there is any inconsistency with regard

to the obtainment of amount from Soman or any other person for lending the same to he accused, that cannot shift the burden so as to help the

accused to discharge the presumption under Sec. 139 of N.I. Act.

The Learned Counsel for the petitioner relies upon decisions of Supreme Court in Kamala v. Vidhyadharan (2007) (3)KLT 561 and also this

court in Bhaskaran Nair v. Mohanan 2009 (2)KLT 897 in support of his submission that it is for the complainant to prove the transaction and that

the accused can discharge his burden by preponderance of probabilities. The Learned Counsel submits that the trial court and the appellate court

did not take note of the fact that the accused had taken steps to summon Soman of Thekkaduthu Kuries and since that fact was omitted to be

noticed by the courts below there was no proper appreciation of evidence. The Learned Counsel for the respondent submits that what was stated

by PW1 was that one Soman was conducting Chitty by name Thekkaduthu Kuries and it cannot be said that Soman was the Foreman of that

Kuri. It is also pointed out that PW1 is not a person engaged in money lending business and the only sin committed by him is that he happened to

lend money to the accused, who was known to him earlier believing his words that the money will be repaid.

It is also pointed out that though the burden is on the complainant to prove the execution and the lending of money when both sides adduced

evidence, the evidence on record has to be weighed and analysed and ultimately the court has to find whether the prosecution has discharged his

duty of proving the case. In that process, the case advanced by the accused and the evidence adduced to probabilise the defence case also may

have to be gone into.

It was not disputed that Ext. P1 was signed by the accused. The name of the complainant (as ''payee'') and the amount in words (as ''Rupees

one lakh only'') and the date were written by the same person. According to PW1 the cheque already up and signed was brought to his house. In

other words, PW1 did not see the accused writing or signing, but at the same time, the accused does not dispute the fact that Ext. P1 was signed

by him. The case advanced by the accused is that Anilkumar (DW1) had obtained Rs. 10,000/- and at that time a signed blank cheque leaf was

given to the complainant. It is true that PW1 has stated that Ext. P1 was already written up as regards the amount and it was signed and handed

over to him. DW1, who was examined to prove the defence case, has stated that the accused had borrowed Rs. 10,000/- and when he demanded

for the amount a cheque was written up and given to him by the accused and that was handed over by him to the complainant. But on going

through Ext. P1, it is seen that the payee''s name, the amount and the date ''15.05.2000'' were written up by the same person at the same time.

Only because, the amount in figure was written up in another ink, it cannot be said that Ext. P1 was not executed and handed over by the accused

to PW1.

The courts below analysed the entire evidence in the correct perspective and held that the case put forward by the defence is improbable and

unacceptable and the case advanced by the complainant is more probable, reasonable and acceptable. I find no reason to hold otherwise. The

conviction is to be thus confirmed.

The Learned Counsel for the petitioner submits that the sentence may be modified. The appellate court sentenced the petitioner to undergo S.I.

for one month and to pay Rs. 1 lakh as compensation to the complainant. Considering all the aspects, I find that the sentence is to be modified. In

the result, this criminal revision petition is disposed of as stated below:

The conviction is confirmed. In supersession of the sentence awarded by the court below, the petitioner is sentenced to imprisonment till the rising

of the court and to pay Rs. 1,10,000/- (Rupees one lakh ten thousand only) as compensation to PW1 the complainant and in default of payment of

the same, the petitioner will undergo S.I. for three months. Petitioner is granted one month time to pay the amount of compensation and to undergo

imprisonment till the rising of the court.