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TMI Blog2010 (4) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... hese v. P. Jerome 1992 Cri.L.J. 380 require or warrant reconsideration? vi) Is there a conflict between the decision in Rejikumar v. Sukumaran 2002 KHC 409 and the decision in M.I. Kumaran v. Abdul Karim and Anr. 2006 (1) K.L.D. (Cri) 811. 2. These interesting questions arise for consideration in this revision petition which has come up before us on a reference by a learned single Judge, who appears to have doubted the correctness of the decision in Thomas Varghese (Supra). 3. We have heard the senior Counsel Sri. G. Janardhana Kurup for the revision petitioner/accused and Ms. Saritha David Chungath for the respondent/complainant. The parties shall be referred to in this order as accused and complainant respectively for the sake of easy reference. 4. The facts scenario which is not in dispute can be summarised as follows: 5. Four cheques each for ₹ 5.5 lakhs marked as Ext.P1 respectively in the four cases which have been disposed of by a common judgment are the subject matter of these prosecutions. A monetary transaction between the parties is admitted and is not disputed. That there is an undischarged liability for the accused to pay amounts to the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsufficiency of funds. The accused, on the contrary, took up a stand towards the fag end of the trial that the cheques were not issued by him to the complainant for the due discharge of any legally enforceable debt/liability. He took a stand during cross examination of PW1 and during 313 examination that the cheque leaves were fraudulently and clandestinely obtained, his signatures were forged in those cheques and those cheques were misused and presented for encashment before the Banker by the complainant. 7. Separate trials commenced. The complainant was examined in all the four cases and documents were marked separately. At that juncture, it appears, joint trial was ordered. The trial continued. The complainant was cross examined in one case after the cases were consolidated. Exts.P1 to P4 were marked in all the four cases. They are the cheques, memo of dishonour, copy of notice and reply notice respectively. Exts.P5, P5(a) and P6 were marked in common after the cases were consolidated and the consolidated trial proceeded. Exts.D1 to D18 were marked by the accused. No oral evidence was adduced by the defence. 8. The courts below - the trial court and the appellate court, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the oral and documentary evidence available in the case in detail. We have been taken through the complaint, answers given by the accused in 313 examination and all other relevant matters. We have been taken through the order of reference by the learned single Judge also meticulously and in detail. 11. At the very outset, we must remind ourselves of the nature, quality and contours of the jurisdiction of a revisional court. The jurisdiction of revision is essentially the power and the duty of superintendence and correction. In an appropriate case where the concurrent findings of fact are grossly incorrect and perverse, nothing can stop this Court from invoking the revisional jurisdiction of superintendence and correction to interfere with such grossly erroneous or perverse findings of fact. It is unnecessary to refer to precedents which have been copiously cited at the bar and in the order of reference to support the above proposition. The crucial question is whether the findings of fact rendered are so grossly erroneous or perverse as to warrant revisional interference. While considering this question, no court of revision can afford to ignore the fact that normally resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment. He did not choose to call upon the complainant not to present the cheques. Even after coming to know that the cheques had been presented, accused had not raised a little finger against the complainant. According to the accused now, the cheques were stolen from his premises. His inaction, even after coming to know that the stolen cheques were being used to withdraw the amounts from his account, is eloquent. All these are circumstances which must weigh with a prudent mind while attempting to decide whether the oral evidence of PW1 can be accepted or not. 14. Of course, there is the evidence of PW2 also. The courts below did not find any reason to reject and discard the evidence of PW2. The question certainly is not whether, we, sitting as an original court for appreciation of facts would have chosen to place reliance on the oral evidence of PW2 or not. The question is whether the revisional powers of superintendence and correction deserve to be invoked to interfere with the findings of fact concurrently recorded by the two courts. The courts below have chosen to accept and act upon the oral evidence of PW1 which is entirely supported by the oral evidence of PW2 and we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth names. He maintains this stand in Ext.P4 and asserts that he has issued written instruction to his bank that he signs as Devan also. In the four cheques (Ext.P1), he has signed as Devan. The complainant in Ext.P3 in the wake of dishonour on the ground of signature differs also had raised an allegation that he had signed differently in the cheques maliciously to defraud the complainant. It is in reply to that, that the complainant had asserted in Ext.P4 that he used to sign in both manner and bank has been informed of such course of conduct adopted by him. 18. In Ext.P4, it is significant that the accused did not raise a contention that the cheques were fraudulently, clandestinely and in a malafide manner removed by the complainant from the possession of the accused. But surprisingly in the course of the trial, we find such a case being advanced. Less said about this weird contention raised by the accused belatedly towards the fag end of the trial, the better. A prudent person cannot for a moment accept this bizarre contention advanced by the accused towards the later stage of the trial. Ext.P4, to our mind, eloquently conveys that this defence sought to be urged in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expert. Every such request will not be automatically and ritualistically be accepted and allowed by a Judge. Sufficient and satisfactory reasons must be shown to exist to justify such reference to an expert. In the instant case the accused had not made any such request before the trial judge. The totality of the circumstances to which we have already referred, particularly the fact that there is no specific denial of the genuineness of the signatures in Ext.P1 in Ext.P4 - nay there is a veiled admission also, does show convincingly that the request to forward the cheques to the expert at the appellate stage was not bona fide or acceptable. We are unable to agree that the lower (appellate) court has committed any error in not forwarding the cheques to the expert. That would have been an unnecessary and meaningless exercise, according to us. The mere fact that the Banker had included the reason that the signatures differed (not even that the signatures do not appear to be genuine) is, according to us, too feeble and unacceptable a reason to persuade us to find fault with the appellate court for not invoking such powers under Section 391 Cr.P.C. 23. It is next contended that at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and the complaint did not advert to the details. But the case of the complainant is clear. There was a proposal to make a film by name Bhadram. This project was sought to be undertaken by the parties. The project did not come through. There was an agreement that for a total amount of ₹ 20 lakhs, the project shall be taken over by the accused. It is for discharge of this liability that this amount of ₹ 20 lakhs was agreed to be paid. This included the amounts which the complainant had already paid to various persons. The nature of the transaction is now clear from the evidence of the complainant (PW1) and Exts.D1 to D17. In any view of the matter, notwithstanding the innocuous inconsistency between the real nature of the transactions and the pleadings in the complaint and the notice, we are unable to agree that the burden on the accused under Section 139 of the N.I. Act has been discharged. 28. We are in ready agreement that the accused is not bound to adduce any defence evidence. Under Section 315 Cr.P.C, the non-examination of the accused cannot even be commented by the adjudicator. But the burden rests squarely on the shoulders of the accused. Once the presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a finding that the real reason was insufficiency of funds and consequently conviction can be entered under Section 138 of the Negotiable Instruments Act. A Division Bench of this Court in Thomas Varghese (supra) has proceeded to observe as follows in paragraph 6: 6. From the argument advanced by the learned Counsel representing the petitioner, it would appear that an offence under Section 138 of the Act should depend on the endorsement made by the banker while returning the cheque unpaid, i.e. only when the banker makes an endorsement that the amount of money standing to the credit of the account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank can an offence under Section 138 of the Act be made out. According to us, such an approach will defeat the very purpose of the enactment. The offence under the Section cannot depend on the endorsement made by the banker while returning the cheque. Irrespective of the endorsement made by the banker, if it is established that in fact the cheque was returned unpaid either because the amount of the money standing to the credit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the act, the legislature has, in its wisdom, thought it proper to make such provisions in the act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country. 34. It is common knowledge that a Banker will be interested in protecting a valued customer of his. The Banker may not readily make an endorsement that the fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Division Bench in Thomas Varghese (supra). We have already extracted the relevant passage in Thomas Varghese (supra) which shows that irrespective of the reasons assigned by the banker, the real reason for the dishonour can be and has to be ascertained by the court. That is what happened in Rejikumar (supra). Notwithstanding the fact that the cheque was dishonoured on the ground of insufficiency of funds, the court in that case held that the real reason for the dishonour must be held to be the non genuine signature. Rejikumar (supra) cannot hence help the revision petitioner. 36. Our attention has also been drawn to the two decisions of learned single Judges of this Court, Hon'ble Justice K.R. Udayabhanu in M.I. Kumaran v. Abdul Karim and Anr. 2006 (1) KLD 811 and Hon'ble Mr. Justice M. Sasidharan Nambiar in the unreported judgment in Crl.A. No. 483/1999 have held that the dishonour by the banker with the endorsement signature differs cannot clinch the issue. Both the learned Judges have chosen to follow the decision of the Division Bench in Thomas Varghese (supra). In Rejikumar (supra), no reference is seen made to the decision in Thomas Varghese (supra). In an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the maintainability of the prosecution under Section 138 of the Negotiable Instruments Act. The challenge on the 5th ground also therefore fails. Ground No. 6. 39. It is contended with the help of the decision of the Karnataka High Court in Nanjundappa v. Hanumantharayappa 2008(2) K.L.T. 851 that when the dishonour is on the ground of account closed and the signature differs , the period of limitation must start running from the date of initial presentation. Subsequent presentation cannot give a renewed lease of life for the cause of action, contends the learned Counsel. 40. We have gone through the decision in Sadanandan Bhadran v. Madhavan Sunil Kumar 1998(2) K.L.T. 765(S.C.) which has clearly held that successive presentation within the permissible period of time is justified and can be resorted to. The cause of action for prosecution can arise only when a notice of demand is issued. Till then within the period permitted by Section 138 of the Negotiable Instruments Act, any number of re-presentations can be done. We are unable to accept the general statement made in Nanjundappa (supra) that in such a case the prosecution must be held to be barred by limitation, if no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lously insisting at the same time that the complainant is fairly and justly compensated. The judgment has been rendered by the Additional Chief Judicial Magistrate who has unlimited pecuniary jurisdiction for imposition of fine. We are satisfied that the fine amount can be enhanced. Direction under Section 357(1) Cr.P.C. can also be modified and justice can thus be achieved in the facts and circumstances of the case. 43. In the result: a) these revision petitions are allowed in part. b) The impugned verdicts of guilt and convictions of the petitioner in all the four cases under Section 138 of the Negotiable Instruments Act are upheld. c) But the sentence imposed is indulgently modified and reduced. The substantive sentences of imprisonment imposed on the petitioner/accused in all the cases are set aside. The sentences of fine imposed are modified. d) The revision petitioner is sentenced in all the four cases to pay a fine of ₹ 7,50,000/- (Rupees seven lakhs and fifty thousand only) each and in default to undergo simple imprisonment for a period of three months each. If the fine amount is realised, an amount of ₹ 7.4 lakhs in each case shall be released to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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