V.Surendran vs Mohinuddin @ Mounudeen
2021 Latest Caselaw 20619 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                      THE HONOURABLE MRS. JUSTICE MARY JOSEPH
           TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                             CRL.REV.PET NO. 13 OF 2021
   AGAINST THE JUDGMENT IN CRL.A. NO.137/2019 ON THE FILES OF THE
 ADDITIONAL SESSIONS JUDGE-II, THIRUVANANTHAPURAM IN CC 154/2010               ON
THE FILES OF THE          JUDICIAL FIRST CLASS MAGISTRATE COURT -V, (SPECIAL
                COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM.
REVISION PETITIONER/APPELLANT/ACCUSED:

                V.SURENDRAN,
                AGED 69 YEARS
                S/O. LATE APPU, SURALEKSHMI APARTMENTS, SBI OFFICERS
                COLONY, KOZHIKODE, NO. RESIDING AT PARVATHI APARTMENTS,
                CHEKKOTTU PARAMBA, CHEVARAMBALAM P.O, KOZHIKODE-673 017

                BY ADVS.SRI.T.G.RAJENDRAN
                        SRI.T.R.TARIN
                        SRI.V.A.VINOD



RESPONDENTS/COMPLAINANT & STATE:

       1        MOHINUDDIN @ MOUNUDEEN
                S/O. MUHAMMED KANNU, THATTAM VILAKOM VEEDU, ALUMMOODU,
                KANIYAPURAM P.O, THIRUVANANTHAPURAM-695 301

       2        STATE OF KERALA,
                REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
                ERNAKULAM-682 031

                R1 BY ADVS.SRI.AYYAPPAN SANKAR
                        SRI.HRIDYA

                R2 BY SENIOR PUBLIC PROSECUTOR SMT.T.V.NEEMA



THIS       CRIMINAL    REVISION   PETITION   HAVING   BEEN   FINALLY   HEARD    ON
05.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.R.P. No.13 of 2021

                                         2




                                     ORDER

Dated this the 5th day of October, 2021

This revision is filed against judgment passed by Judicial First

Class Magistrate Court-V (Special Court for Marklist Cases),

Thiruvananthapuram in CC No.154/2010, which was confirmed and

modified by judgment passed by Additional Sessions Judge-II,

Thiruvananthapuram in Criminal Appeal No.137/2019.

2. C.C.No.154/2010 is a prosecution launched by the

1st respondent under Section 138 of the Negotiable Instruments Act,

1881 (for short 'the N.I.Act'). In the trial held in the case, PW1 and

PW2 were examined and Exts. P1 to P8 were marked on the side of

the 1st respondent. On the side of the revision petitioner himself was

examined as DW1 and Ext.D1 was marked. The trial court based on

the evidence arrived at a finding of guilt of the accused for offence

punishable under Section 138 N.I.Act and convicted and sentenced

him to undergo imprisonment till rising of the court and pay a fine of

Rs.11,00,000/- and in default of payment of fine to undergo simple

imprisonment for a period of six months. On deposit of the fine Crl.R.P. No.13 of 2021

amount, the same was also directed to be paid to the complainant as

compensation under Section 357(1) Cr.P.C. When the judgment was

assailed, the appellate court has confirmed the finding of guilt of the

accused under Section 138 N.I.Act but modified the sentence on the

basis of a receipt produced and marked in evidence as Ext.D1

wherefrom it was discerned that Rs.1,00,000/- was paid by the

revision petitioner towards partial discharge of the liability covered by

Ext.P1 cheque. Thus the appeal was allowed in part modifying the fine

amount payable to Rs.9,00,000/-.

3. Sri.T.G.Rajendran, the learned counsel for the revision

petitioner has submitted on the basis of the dictum in John v. Alosious

[2010 (2) KLT 901], when the liability due under Ext.P1 cheque has

been partially discharged by the revision petitioner and that has also

been established by Ext.D1 forming part of the evidence, prosecution

launched for the entire amount is not maintainable. According to him

as held in the dictum, the amount covered by the cheque being more

than what is due cannot be said to be a legally enforceable debt to

attract an offence under Section 138 N.I.Act.

4. According to the learned counsel, the payment of

Rs.1,00,000/- towards partial discharge having been admitted by the Crl.R.P. No.13 of 2021

complainant during cross examination, the dictum laid down in John's

case supra will squarely be applicable and therefore, the judgments

under challenge are only to be interfered with and reversed.

5. The learned counsel for the 1st respondent pointed out that

Ext.D1 was not admitted by the 1 st respondent. What was stated by

him when cross examined as PW1 was that contents of Ext.D1 was not

written by him and that who actually authored the signature found

therein is not known to him. But, the appellate court opted to

compare the signatures in the complaint and Ext.P1 and came to the

conclusion that signature in Ext.D1 was affixed by the complainant.

6. Though it was contended by the learned counsel for the 1st

respondent that the appellate court is absolutely unjustified in

comparing the disputed signature with the admitted one on it's own to

arrive at a finding that the signature in Ext.D1 was authored by the

complainant himself, that finding was not assailed by him.

7. This Court also noticed from the judgment of the trial court

that Ext.D1 was marked in evidence subject to proof. When a

document is marked subject to proof, it is the burden of the person

who has proposed it's marking to adduce further evidence to bring Crl.R.P. No.13 of 2021

that within the purview of admissible evidence. It is pertinent to note

that not even an attempt was made by the petitioner in that regard.

When the matter was assailed before the appellate court, the appellate

court proceeds to compare the signatures in the complaint and Ext.D1

and found in the process that similar features exist in the signatures.

The appellate court is highly unjustified to compare the signatures

when the document was not admitted in evidence by the trial court.

The finding of the appellate court that the signature in Ext.D1 was

authored by the complainant himself having not been assailed by him

has become final also.

8. The Apex Court has held in Bir Singh V. Mukesh Kumar

[2019 (1) KHC 774 (SC)] that only on the basis of a jurisdictional

error, concurrent findings of guilt of the accused, though erroneously

entered into can be interfered with in revision. The Apex Court has

held on the basis of Section 20 N.I.Act that once a signed cheque is

admittedly issued, it cannot be contended later by the drawer that the

entries in the cheque were not authored by him.

9. The factual averments in the complaint would disclose to

this Court that the borrowal of the amount was on 17.08.2009 and the

issuance of the cheque was on 05.07.2010, that too with a direction Crl.R.P. No.13 of 2021

to present it after six months. The case of the revision petitioner was

that he has repaid Rs.1,00,000/- towards the debt due from him to

the complainant. Ext.D1 is dated 29.07.2009. Therefore, the cheque

was issued subsequent to the alleged issuance of Ext.D1 and the

direction was to present it after six months therefrom. Therefore, as

held in Bir Singh supra, the burden is, on none other than the revision

petitioner to establish the circumstances that led to the issuance of

the disputed cheque on 05.07.2010 for a sum of Rs.10,00,000/- or

else for any lessor sum than that. It is pertinent to note that the

evidence in that regard is not brought on record by the revision

petitioner. Therefore, the revision is not maintainable and is liable to

be dismissed and accordingly dismissed.

It is urged by the learned counsel for the revision petitioner

lastly that the revision petitioner being a person having ailments,

some more time is required for payment of the compensation. The

pandemic scenario is still prevailing and therefore, this Court finds it

expedient in the interest of justice to grant some more time to the

revision petitioner. The compensation amount being Rs.9,00,000/- six

months' time is a reasonable time and is granted for deposit. The trial

court shall not initiate coercive steps against the revision petitioner for Crl.R.P. No.13 of 2021

the period now stands extended for paying the compensation to the

respondent. The revision petitioner shall surrender before the court

below on any day to serve the substantive sentence of imprisonment

till rising of the court and take every endeavour to pay the

compensation and file a memo evidencing it's receipt by the

respondent on or before 05.04.2022. If the revision petitioner fails to

surrender before the court to serve the substantive sentence and pay

the compensation on or before 05.04.2022, the trial court shall

proceed with execution of the sentence imposed on him by the

impugned judgments, forthwith. There shall not be any further

extension of time.

Sd/-

MARY JOSEPH

MJL JUDGE