Criminal Revision Petition No. 1192 of 2004 · Kerala High Court · 2007

V.RAMKUMAR, J..........................................Crl.R.P. No. 1192 of 2004 .............................................Dated: 29-11-2007O R D E RIn this Revision filed under Section 397 read with Sec. 401Cr.P.C. the petitioner who was the accused in C.C. No. 505 of1999 on the file of the J.F.C.M.-I, Attingal challenges theconviction entered and the sentence passed against him for anoffence punishable under Sec. 138 of the NegotiableInstruments Act, 1881 (hereinafter referred to as 'the Act').2.I heard the learned counsel for the Revision Petitionerand the learned Public Prosecutor.3.The learned counsel appearing for the RevisionPetitioner re-iterated the contentions in support of the Revision.The courts below have concurrently held that the cheque inquestion was drawn by the petitioner in favour of thecomplainant on the drawee bank, that the cheque was validlypresented to the bank, that it was dishonoured for reasons whichfall under Section 138 of the Act, that the complainant made ademand for payment by a notice in time in accordance withclause (b) of the proviso to Section 138 of the Act and that theRevision Petitioner/accused failed to make the payment within15 days of receipt of the statutory notice. 4.The learned counsel appearing for the revisionpetitioner made the following further submissions before me:-According to the complainant Ext.P1 cheque was issued tothe accused on 20-3-1999. But the defence evidence adduced CRL. R.P. NO. 1192 of 2004-:2:-by the accused will show that the cheque book containingExt.P1 cheque leaf was issued only on 13-05-1999 andtherefore, it was impossible for the accused to issue a cheque on20-3-1999 as alleged by the complainant. The convictionrecorded by both the courts below overlooking the above vitalaspects cannot be sustained. According to the revisionpetitioner the cheque in question was a signed blank chequeissued to the complainant in connection with some othertransaction. That cannot be the subject matter of aprosecution under Section 138 of the N.I. Act. In AvonOrganics Ltd. v. Pioneer Products Limited and Others -2004 (1) Crimes 567 a learned Single Judge of the AndhraPradesh High court had held that if a cheque is not drawn for aspecified amount, it will not fall within the definition of bill ofexchange and if the cheque has been subsequently filled up itwould amount to material alteration. 5.I am afraid that I cannot agree with the abovesubmissions. In the first place, the revision petitioner has nogrievance either in the appeal memorandum filed before thelower appellate court or in the revision filed before this Courtthat it was impossible for the accused to issue the cheque inquestion on 20-3-1999 since the cheque book itself was issued bythe drawee bank only subsequently and although the abovecontention was urged before the courts below, the same wasomitted to be considered by the courts below. Secondly, thefact that merely because the cheque was issued by the draweebank only on 13-5-1999 it will not improbabilise the contentionof the complainant since even according to the complainant thecheque was issued after the borrowal on 20-3-1999 pursuant to arefusal on the part of the accused to pay the amount when CRL. R.P. NO. 1192 of 2004-:3:-demanded. The judgments of both the courts below is silentabout the point having been urged before the courts below andthat should be the last word on this question, particularly whenthe revision petitioner has no complaint in the appeal or in thisrevision that eventhough this point was urged it was omitted tobe considered by the courts below. 6.As for the contention that a signed blank cheque wasissued and the subsequent filling up of the same by thecomplainant will amount to material alteration, the accused hasnot been able to explain the circumstances under which hehappened to issue a signed blank cheque. A signed blankcheque is given as a security so as enable the recipient to use itin the event of default. In such a case it can be presumed thatthere was an implied authority given to the recipient to fill upthe colums in the cheque so as to make it a completenegotiable instrument. Otherwise, no person will receive asigned blank cheque as a security if he cannot use it as anegotiable instrument in the event of default committed by thegiver of the instrument. Hence the above decision cannot haveany application to the facts of this case. If the in question wasgiven as security, then the revision petitioner owed a duty toexplain the circumstances under which it happened to beissued. In the absence of the above, the courts below arejustified in holding that the cheque was issued in discharge of aliability pursuant to the borrowal of Rs. 40000/- made by therevision petitioner. Both the courts have considered and rejectedthe defence set up by the revision petitioner while entering thefinding of guilt. The said finding has been recorded on anappreciation of the oral and documentary evidence. I do notfind any error, illegality or impropriety in the finding so recorded CRL. R.P. NO. 1192 of 2004-:4:-concurrently by the courts below. The conviction was thusrightly entered against the petitioner.7.What now survives for consideration is the question asto whether a proper sentence has been imposed on the RevisionPetitioner or not. Having regard to the facts and circumstancesof the case, I am, however, inclined to modify the sentence in thelight of the recent pronouncement by the Supreme Court that nodefault sentence can be imposed for an order for compensationunder Section 357(3) Cr.P.C. Accordingly, the sentence imposedon the revision petitioner is set aside and instead he issentenced to undergo imprisonment till rising of court and topay a fine of Rs. 15,000/- (giving credit to the sum of Rs.25,000/- deposited before the trial court pursuant to the interimorders passed by this Court and which amount shall bepermitted to be withdrawn by the first respondent/complainant)which shall be deposited before the trial court within twomonths from today failing which he shall suffer simpleimprisonment for three months by way of default sentence. Thefine amount as and when deposited shall be paid to the firstrespondent complainant as compensation under Sec. 357 (1)Cr.P.C.This Revision is disposed of confirming the conviction butmodifying the sentence as above. V. RAMKUMAR, JUDGE.ani