---------- The revision petitioner is the accused in ST.No.79/2007 on the files of the Judicial First Class Magistrate Court, Alathur, as well as the appellant in Crl.Appeal.No.468/2008 on the file of the Additional Sessions Court, Palakkad Division. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short “the Act”), on a complaint filed by the 1st respondent herein. After trial the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder, he was sentenced to undergo simple imprisonment for a period of 2 months for the offence under Section 138 of the Act, and directed to pay compensation of Rs.1,50,000/- to PW1 being the cheque amount, and in default simple imprisonment for a further period of 3 months.
2. Aggrieved by the conviction and sentence though he had preferred the above criminal appeal after re-appreciating the entire evidence on record, the learned Sessions Judge also concurred with the findings of conviction and sentence and dismiss the appeal. The legality, propriety and correctness of the said findings whereby, the appellate court concurred with the conviction and sentence are under challenge in this revision petition.
3. It is the case of the 1st respondent that the revision petitioner had borrowed a sum of Rs.1,50,000/- from the 1st respondent on 30.6.2004 and issued a post dated cheque for Rs.1,50,000/- dated 30.6.2006 to the 1st respondent in discharge of the aforesaid debt on that date itself. When the cheque was presented for payment in bank the same was dishonored, and returned for want of sufficient funds. Though he had caused to issue a lawyer's notice demanding the cheque amount, the revision petitioner didn't pay the said amount nor did he sent a reply denying that the liability under the cheque. Therefore the appellant committed the offence punishable under the Section 138 of the Act.
4. In defence the revision petitioner contended that he has no transactions with the 1st respondent, but he admitted that Ext.P1 cheque bears his signature. According to him he has not written anything on the cheque except the affixure of his signature. Ext.P1 cheque was the cheque which was given to Adv.Chenthamarakshan, when he borrowed the money from him in the year 1999. In addition to that, as a security for the said money transactions he has executed Exts.D1 and D2 documents in favor of the said Chenthamarakshan, but thereafter he had paid back the money which he borrowed from the said Chenthamarakshan. Consequently the properties which were given to Chenthamarakshan under the aforesaid assignment which were re-transfered to the revision petitioner and his wife by Exts.D3 and D4 documents. But Chenthamarakshan made a demand for additional amount of Rs. 25,000/- from the revision petitioner. But the revision petitioner was not willing to pay any amount to the said Chenthamarakshan. Consequently Chenthamarakshan retained the cheque saying that the same would be returned only on payment of additional amount. Later after the filing of the complaint he came to note that the said cheque which was given to Chenthamarakshan has been misused by writing the name of the 1st respondent on the cheque and prosecuted him thereunder. It is also contended that he has never seen the respondent herein.
5. The learned counsel for the revision petitioner advanced arguments challenging the findings of the Court below, whereby the learned Sessions judge concurred with findings of the lower court convicting the revision petitioner. According to the learned Counsel Exts.D1-D4 obviously proved the transaction between the revision petitioner and Chenthamarakshan, thus the case put forward in defence by of the revision petitioner is well collaborated by the Exts.D1-D4. But the court below has miserably failed to appreciate those documentary evidence, so as to arrive at a finding that the revision petitioner has succeeded to rebut the presumptions under Section 138 of the Act by preponderance of probability. Secondly the learned Counsel contended that the revision petitioner is an educated person, but it is the case of the respondent that the revision petitioner along with an another person has come to his house and the person who accompanied the 1st respondent has filled up the cheque and hand over the cheque to the 1st respondent, after the affixture of the signature by the revision petitioner. There is no circumstances to fill up the cheque by a third person, who allegedly accompanied him when the revision petitioner is not an illiterate person.
6. Per contra, the learned Counsel for the respondent contends that the revision petitioner had miserably failed to rebut the presumption under Section 138 and 118 of the Act,which stood in favor of the respondent. Though, he had given evidence to show that Ext.P1 cheque was one issued to Chenthamarakshan in connection with the money transaction, which culminated in transferring of his property to the said Chenthamarakshan under Exts.D1 and D2, there is no evidence or any kind of materials to connect the said transaction under Exts.D1 to D4 with Ext.P1 cheque. It is also contended that, despite the receipt of notice which is evidenced by the acknowledgment, the revision petitioner has not sent a reply denying the liability under Ext.P1 cheque contending that the said cheque was one issued to Chenthamarakshan. The absence of such a reply notice would tantamount to admission from his part as regards the demand made by him in the lawyer's notice.
7. In view of the rival contentions, the question to be considered is, whether there is any illegality or impropriety in any of the findings, whereby the court below convicted the revision petitioner for the offence under Section 138 of the Act, or whether there is any perversity in the appreciation of evidence from which those findings have arrived at.
8. The scope and extent of jurisdiction under Section 397 and 401 of this court is very limited, confining to legality, propriety and correctness only. This court is not expected to interfere with the concurrent findings of the courts below on factual appreciation, unless it is seen that the findings are perverse, and as well as unacceptable. Even if it is possible, the revision court cannot substitute another view in the place of views concurrently arrived at by the court below. The point to be considered is, whether there is any illegality or impropriety or any kind of perversity in the concurrent findings that the respondent has succeeded in discharging the initial burden of proving execution and issuance of the cheque, but the revision petitioner failed to rebut the presumptions under Section 139 and 118(A) of the Act, which stood in favor of the respondent.
9. It is a specific case of the respondent that Ext.P1 cheque was issued in discharge of an amount borrowed from him on 30.6.2004. To discharge the initial burden of proving execution and issuance of cheque, the respondent was examined as PW1 and marked Exts.P1-P6. Ext.P2 and P3 evidently show that Ext.P1 cheque was dishonored and returned for want of sufficient funds. After appreciating the evidence of PW1, coupled with Exts.P1-P6, the courts below concurrently arrived at a finding that the respondent had successfully discharged the initial burden of proving execution and issuance of the cheque, and the presumption under Section 139 and 118(A) would stand in favor of the respondent. I do not find any kind of perversity in any of the findings whereby the courts below arrived at a finding that the respondent has succeeded in discharging the initial burden of proof.
10. What remains to be considered is, whether the revision petitioner has succeeded in rebutting the presumption under Section 118(A) and 139 by preponderance of probability. Going by the evidence on record, it could be seen that the specific defence case advanced by the revision petitioner is that, Ext.P1 cheque was the cheque which was issued to Chenthamarakshan, when he borrowed some amount from him and the said borrowal later culminated in transferring of his property in favor of Chenthamarakshan under Exts.D1 and D2. In the course of that transaction he hand over a blank signed cheque to the said Chenthamarakshan as a security. When he repaid the entire amount borrowed from Chenthamarakshan he has re transferred the property covered by Exts.D1 and D2 by Exts.D3 and D4 to him. But he retained the signed blank cheque on demand of an additional amount of Rs. 25,000/-. Since he was not willing to pay such an additional amount, he did not return the cheque and said cheque was misused for prosecuting him in retaliation.
11. Going by the findings of the appellate court, it could be seen that the revision petitioner has successfully proved the transfer of property to said Chenthamarakshan and also re transfer the said property under Exts.D1-D5. But there is absolutely no evidence or any kind of materials to prove that Ext.P1 cheque was one issued during the course of said transaction as claimed by the revision petitioner, and at that time the said cheque was a blank signed cheque. In the absence of any material or any other evidence, I cannot find fault with the court below for arriving at a finding that the revision petitioner has failed to prove the defence contentions that Ext.P1 cheque was a blank cheque which was issued to the said Chenthamarakshan during the course of property transaction. I do not find any kind of perversity in the appreciation of evidence.
12. Secondly the learned Counsel for the revision petitioner contended that the revision petitioner is not an illiterate person, and there is no circumstances to fill up the cheque by a third person. But going by the evidence of PW1, it is a specific case that the 1st respondent accompanied by a third person with whom he has no acquaintance came to his house and that person filled up the cheque and thereafter the revision petitioner affixed his signature and hand over the cheque to him. In my view, there is no statutory or legal bar against the drawal of the cheque by a person other than the account holder or drawer of the cheque. The person who affixed his signature in the cheque is the drawer of the cheque. The cheque can be filled up by any person. This is the view taken by this court in 2006(3) KLT 62. Therefore merely on the reason that the cheque was filled up by a third person in the presence of the drawer of the cheque, it cannot be presumed that the said cheque was not a cheque issued by the drawer of the cheque to realize a legally enforceable debt. Therefore, I am unable to countenance the arguments advanced by the learned Counsel for the revision petitioner on that point.
13. On an over all evaluation of the entire evidence on record, I find that there is no illegality or impropriety in any of the findings, whereby the Court below convicted the revision petitioner and I do not find any kind of perversity in the appreciation of evidence also.
14. At last the learned Counsel for the revision petitioner submits that the revision petitioner is suffering from a financial crisis and he can pay the fine amount within Six months only. The learned Counsel further urged for granting Six months time to pay the fine amount. In view of the above submissions, the revision petitioner is given Four months time from today to pay the fine amount.
15. Hence this revision petition will stand dispossed of with the following terms.
(i) The revision petitioner shall pay fine of Rs.1,50,000/- (One lakh Fifty thousand), within four months from today, and the same shall be given to the 1st respondent/complainant as compensation under Section 357(3) of Cr.P.C.
(ii) In fact, the revision petitioner shall undergo simple imprisonment for one month.
Sd/-
K.HARILAL, JUDGE /TRUE COPY/ PA TO JUDGE VS