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The Delhi High Court Act, 1966
Section 139 in The Indian Evidence Act, 1872
The Indian Evidence Act, 1872
Article 21 in The Constitution Of India 1949
Section 138 in The Indian Evidence Act, 1872

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Kerala High Court
Unknown vs Raveendranath on 24 August, 2006
       

  

  

 
 
 he Kerala Abkari Act?   Is there a conflict between the decisions of


the Single Judges in   Karthikeyan   v.   State of Kerala    (2000 (3)


KLT   639),      Balan    v.    State   of   Kerala    (2002   (3)   KLT     161),


George Issac  v.  State of Kerala  (2004 (1) KLT 752) and  Sabu  v.


State of Kerala  (2003 (2)  KLT 173)?    Is there  a concept of legal


and illegal liquors under the scheme of the Kerala Abkari Act?  Does


the monstrosity  of the penal provision render the law under Section


55 of the Kerala Abkari Act  not fair, just  and reasonable, at least in


certain   categories   of   cases   to   justify   judicial   review   of   the   said


provision   on   the   touchstone   of   Article   21   of   the   Constitution?


These   interesting   questions   arise   for   consideration   in   this   revision


petition,   which   is   directed   against   a   concurrent   verdict   of   guilty,


conviction and sentence in a prosecution under Section 55(a) of the


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Kerala Abkari Act.


       2.  To the crucial and skeletal facts first.  The petitioner was allegedly


found to be transporting 22 litres of toddy in a bicycle   without any legal


authority at 1.15p.m. on 1.9.2000 along the public road in Cherthala taluk.


The   offence   was   detected     by   the   Excise   Inspector   and   party.     The


prosecution   examined PWs. 1 to 5 and proved Exts.P1 to P4.   MO1 was


also  marked.    The accused does not appear to have  disputed  the specific


allegation of fact.  He raised a contention that though he was not a licensed


toddy   tapper,   he   was   substituting   for   DW1,   who   did   have   the   requisite


license for tapping.  The courts below concurrently came to the conclusion


that the said defence was not acceptable and that the petitioner, who did not


have the requisite authorisation to work  as a substitute tapper and  did not


have   the   license   of   DW1   available   with   him   at   the   time   when   he   was


transporting, is not entitled to succeed in that defence.   The courts further


held that the proved culpable  conduct amounts to   an offence punishable


under Section 55(a) of the Abkari Act.


       3.   The learned counsel for the petitioner raises one vital and crucial


contention.     He   contends  that   toddy   is   not   an   illegal   liquor.    He   further


Crl.R.P.No.  2747  of   2006                 3



contends that he is not alleged to sell or possess any illegal liquor   which


may lead to liquor tragedies.  He has not manufactured or imported liquor


without   licence   and   proper   contract.     He   has   not   sold   liquor   illegally


without licence causing heavy financial burden on the State by avoidance of


tax.  Therefore, he is not liable to be proceeded against under Section 55(a)


of the Abkari Act.   Even assuming   that he is liable for some other lesser


offence, he cannot be prosecuted successfully for the offence under Section


55(a) in the light of the dictum in Sabu (supra).


       4.  The learned Director General of Prosecution, who,  at the request


of court advanced arguments,  to  the contrary contends that Sabu has been


wrongly decided  and that the conclusions drawn in  Sabu  are not justified


by the scheme of the Kerala Abkari Act or the specific language of Section


55,   including   its   side   heading.     The   matter   requires   reference   to   an


appropriate larger Bench, prays the learned D.G.P.


       5.  The question raised is important and serious and calls for a review


of the provisions and   precedents.   Liquor is defined in    Section 2(10) of


the Kerala Abkari Act, which  includes spirit of wine, arrack, spirits, wine,


toddy, beer and "all liquids consisting of or  containing alcohol".  Arrack is


Crl.R.P.No.  2747  of   2006                   4



defined under Section 2(6A) of the Act and it means "  any potable liquor


other   than   toddy,   beer,   spirit   of   wine,   wine,   Indian   made   spirit,   foreign


liquor   etc..."   The expressiona   "export, import, transport and transit" are


all defined under the Act in Section 2(16) - (18)   and transport means to


move from one place in a State  to another place in   the State.  Under the


Kerala Abkari Act certainly there can be prohibition against manufacture,


import,   export,   transport,   transit,   possession,   storage   sale     etc.   of   any


specified type of liquor and Section 8 of the Abkari Act   reveals the only


example, where an item of liquor,  "arrack" has been totally banned in the


State of Kerala from 1.4.1996.


       6.       Nowhere   does   the   Kerala   Abkari   Act   define   legal   liquor   and


illegal  liquor.   That  is not  a concept  known to the  law under the Kerala


Abkari Act or the Rules.   Since arrack is prohibited under Section 8, one


may loosely call it an illegal liquor   to mean prohibited liquor   in contra


distinction to other liquors which are non-prohibited liquors.       Except to


the  extent of a blanket prohibition under Section 8, I am unable to place my


finger on  any  liquor  which  can  be said to be  prohibited  or illegal  in the


State of Kerala.


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       7.  Under Chapter III of the Kerala Abkari Act, stipulations are made


about   import,   export   and   transport     of   liquor   and   under     Chapter   IV


provisions are made about manufacture,     possession and sale   of liquor.


Chapter V deals with duties, taxes and rentals payable in respect of  liquor


and  intoxicating  drugs.    Chapter  VI   deals  with  licenses  etc.    which  can


authorise persons to deal with liquor and intoxicating drugs.   Chapter VII


deals   with   general   provisions     and   Chapter   VIII   deals   with   powers   and


duties of officers etc.  Chapter IX containing Sections 55 to  68A deal, inter


alia, with penalties and provisions relating to confiscation etc.    Section 55


deals with  consequences for certain acts done in contravention of the Act


or   any   Rule   or   Order   made   under   the   Act.     Section   56   deals   with


misconduct by licensees.   Section   57 deals with   adulteration by licensed


vendor or manufacturer.  Section 57A deals with adulteration of liquor  or


intoxicating   drug   with   noxious   substances.     Section   58     deals   with


punishment  for possession of illicit liquor.  It is not necessary to advert to


the various other provisions prescribing punishment.


       8.  The concept of illicit liquor is appearing in Section 58 of the Act,


though illicit liquor is not as such defined.  Non-payment of duty, taxes or


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rental payable under the Abkari Act makes the liquor illicit.  If duty, tax or


rental has been paid, it must be held to be licit liquor attracting culpability


under Section 58 of the Act.  If such levy has not been paid, it must be held


to   be   illicit   liquor   for   the   purpose   of   Section   58,   though   there   is   no


definition as such of illicit liquor.




       9.  I have adverted to this to find out whether there is concept of legal


liquor in contradistinction  to illegal liquor.  It becomes necessary because


of the following observations which appear in Sabu   (supra).  I extract the


following crucial passages in paragraphs 4 and 5 of the said decision.


               4.    xxx   xxxx
       "   But, the object of the Act which is to be interpreted also
       shall  be   looked  into.    If  a  person  sells  or  possesses  illegal
       liquor   (which   may   lead   to   liquor   tragedies)   or   one
       manufactures   or   imports   liquor   without   licence   and   proper
       contract   or   sells   liquor   illegally   without     licence   causing
       heavy financial burden on the State by avoidance of tax etc.,
       offence  is very serious and punishment of a minimum fine of
       Rs. one lakh may be justifiable".


               5. xxx  xxxx
       "  Therefore,   the   words,   import,   export,   transport,  transit   or
       possession  of liquor  read with  heading  to  the  section  show
       that it is applicable to illegal liquors."


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       10.   When   there is no distinction between legal liquors and illegal


liquors,  how is the dictum to be applied and enforced?  I find merit in the


submission   of   the   learned   Director   General   of   Prosecutions   that   the


decision in Sabu (supra)  requires  to be reconsidered.  The learned D.G.P.


points   out     that   the   attempt   made   to   make   use   of   the   side   heading   to


interpret the body of the section is not correct  in as much as  the head note


deals   only   with   "illegal   import   etc.   of   liquor   and   intoxicating   drugs   in


violation of the Act, Rules and Orders under the Act" and  does not make


import,   export,   transport,   transit,   manufacture,   etc.   of     illegal   liquor


punishable.  The argument does appear to me to be weighty.


       11.     The   various   provisions   of   Chapter   IX   make   specific   acts


punishable and culpability has no relationship whatsoever to any concept of


legal   liquor   or   illegal   liquor.     I   must   also   immediately   agree   with   the


learned D.G.P. that Section 63 can come into  operation  only if there is no


other specific  provision  for punishment  of an offender.   If there be   any


stipulation   for   punishment   of   an   offender   under   any   other   provision,


certainly Section 63 which comes into play only when punishment is "not


otherwise   provided   for"   cannot   have   any   application.     If     an   act   is


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punishable under Section 55 of the Kerala Abkari Act, there can certainly


be no resort to the residuary provision under Section 63.


       12.         A   Division   Bench   of   this   Court   in  Surendran    v.    Excise


Inspector    (2004   (1)     KLT   404)     considered   the   distinction   between


possession of liquor under Section 55(a) and Section 58 of the Abkari Act


and the dictum in paragraph 9 of the said decision, extracted below, clearly


brings out the distinction.


               "9.    Thus, it appears that the case shall fall within the
       ambit   of   S.55(a)   only   when   a   person   is   found   to   be     in
       possession of liquor in the course of import, export, transport
       or transit of the goods.  In case the possession is merely with
       the knowledge of the goods having been illegally imported or
       manufactured, the case would fall within the mischief of S.58".


       13.  Therefore there appears to be force in the contention that  even if


there   be   possession   incidental   to   import,   export,   transport   or   transit   in


violation of Sections 10 and 13 of the Act.   That will be clearly an instance


of possession  incidental to export or import, transport  or transit which is


made punishable under the Act and consequently attracts  culpability under


Section 55(a) of the Act.


       14.     To   hold     that   toddy   is   legal   liquor   and   therefore   possession


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incidental   to   export,   import,   transport   and   transit   proper   of   toddy   in


violation of the provisions of Sections 10 and 13 would not amount to an


offence under Section 55(a) and would be only an offence under Section 63,


does   not   appear   to   be   acceptable   though   such   a   conclusion   appears   to


emanate from the dictum in Sabu.    The learned D.G.P.  points out that on


two earlier occasions in   Karthikeyan   and  Blan   (supra)   this Court had


considered  that  question  and had not  made  any distinction  between  legal


liquors and illegal liquors when it comes to culpability under Section 55(a).


In the light of the very specific language used in Section 55, which reads:



               "Whoever in contravention of this Act or of any rule
       or order made under this Act"


the   person   who   indulges   in   the     conduct   of   export,   import,   transport   or


transit, that would be punishable.  It appears to be  impermissible to contend


that   the   contravention   of   the   Act,   Rule   or   Order   would   not   attract


culpability  under Section 55 merely for the reason that the liquor concerned


is not prohibited (illegal liquors to borrow the language of Sabu) as in the


case of arrack under Section 8.       Section 63, according to me, can apply


only when the act does not fall within the mischief of Section 55 or is not


Crl.R.P.No.  2747  of   2006                  10



made punishable under any other provisions of the Act, Rule or Order.


       15.   In the instant case, there is no contention that transportation of


toddy     without   authority   is   made   punishable   under   any   provision   of   the


Rules concerned, orders or other provisions of the Act.   The principle that


the special excludes the general cannot be pressed into service.     I repeat


that Section 63 will not be applicable if Section 55 is applicable.  Therefore,


Section 55, according to me, must certainly take a case where the permitted


liquor (other than arrack, which is prohibited under Section 8 of the Act), is


also involved in the type of violation contemplated under clauses (a) to (i)


of Section 55.  Either under Section 55(1) or (2) such a contravention of the




Act or Rule or order in respect of all types of liquor must be punishable


under Section 55.


       16.  The learned Judge in Sabu   was concerned about the monstrous


punishment  of a minimum fine of Rs. One lakh  and maximum  punishment


of imprisonment for 10 years prescribed   for the offence under Section 55


(a)   of   the   Act.     It   must   and   does   cause   concern.     That   even   innocuous


violation of the stipulations of Sections 10 and 13 which do not even attract


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the penal provision under Section 58 must be made punishable with such


monstrous punishment does cause concern.   It may have to be considered


whether   the   law   on   that   aspect   can   be   held   to   be   not   fair,   just   and


reasonable,   but   whimsical,   fanciful   and   unreasonable   that   the   provision


should fail on the touchstone of   constitutionality under   Article 21 of the


Constitution   as opposed  to the principles of due process.   The possibility


of innocuous violation being visited with such monstrous punishment  does


cause   anxiety   and   concern   in   my   mind.     But   I   am   unable   to   accept   the


reasons given in Sabu to distinguish between legal liquor and illegal liquor


as to make Section 55 inapplicable to non-prohibited liquor.   The absence


of clarity on the law is creating havoc and misuse of the provisions by the


unscrupulous.


       17.  I am, in these circumstances, satisfied that the matter deserves to


be considered by a Division Bench of this Court and accordingly make a


reference   under   Section   3   of   the   Kerala   High   Court   Act.     Post   the   case


before a Division Bench.




                                                            (R. BASANT)


Crl.R.P.No.  2747  of   2006       12



                                         Judge


tm



? IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 599 of 2002(C)


1. SAJI THOMAS, S/O.V.J.THOMAS,
                      ...  Petitioner

                        Vs



1. RAVEENDRANATH, S/O.KUNHIKKAVU AMMA,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.K.P.DANDAPANI

                For Respondent  :SRI.N.HARIDAS

The Hon'ble MR. Justice R.BASANT

 Dated :24/08/2006

 O R D E R
                                R. BASANT, J.
                         - - - - - - - - - - - - - - - - - - - -
                         Crl.R.P.No.  599 of   2002
                        -  - - - -  - - - - - - - - - - - - - - -
                Dated this the  24th day of   August, 2006


                                    O R D E R

This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.

2. The cheque is for an amount of Rs. 90,000/-. It bears the date 4.11.1995. According to the complainant the cheque was issued for the due discharge of any legally enforcible debt/liability.

The cheque was dishonoured on the ground of insufficiency of funds. The notice of demand, though duly received and acknowledged, did not evoke any response. The complainant thereupon came to court after observing the statutory time table scrupulously. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused did not adduce any oral evidence.

He proved Ext.D1 complaint filed by him long after the commencement of the prosecution before the police, wherein he Crl.R.P.No. 599 of 2002 2 complained about misuse of two cheque leaves lost from his possession.

3. The crux of the defence urged is that there was no transaction between the petitioner and the complainant; that the cheque was not issued for the due discharge of any legally enforcible debt/liability, that the cheque in question was lost from the possession of the petitioner and that the complainant, who has some how come into possession of the cheque, is trying to misutilise the same to stake a false and untenable claim. Except production of Ext.D1 no other evidence was adduced.

4. The courts below, in these circumstances, concurrently came to the conclusion that the execution and handing over of the cheque has been established satisfactorily. It was further held that the burden under Section 139 of the N.I. Act has not been discharged. Accordingly they proceeded to pass the impugned concurrent judgments.

5. The counsel have advanced arguments. The learned counsel for the petitioner assails the impugned verdict of guilty and conviction on three grounds. It is contended first of all that execution and handing over of the cheque have not been established satisfactorily and beyond doubt. It is Crl.R.P.No. 599 of 2002 3 secondly contended that, at any rate, the courts below should have held that the burden on the accused under Section 139 of the Act has been discharged and there is no satisfactory evidence to show that the cheque was issued for the due discharge of any legally enforcible debt/liability. Thirdly and finally it is contended that the sentence imposed is excessive.

6. Coming to the first contention, I have no hesitation to agree that the burden of proof - execution and handing over of the cheque - is on the complainant. The complainant has got to prove these allegations by satisfactory evidence beyond doubt. The presumption under Section 139 of the Act cannot be imported to prove execution or handing over of the cheque. The complainant must establish satisfactorily that the cheque was executed and handed over to him by the accused whereupon only the presumption under Section 139 of the Act can be drawn.

7. To prove execution, there can be many methods. In the instant case, PW1 was examined to prove execution. He asserted that the signature was affixed by the accused in his presence and thereafter the cheque was handed over to him. This assertion of PW1 is not seen Crl.R.P.No. 599 of 2002 4 effectively challenged in the course of cross examination. PW1 is making a statement on oath. The burden certainly is on the accused to bring to the notice of the court all circumstances which should persuade the court not to accept the evidence of PW1. Ext.P1 cheque is admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account. The explanation which the accused has to offer as to how the cheque leaf issued to him by his bank travelled from his possession to that of the complainant is certainly an important input while considering whether PW1's evidence about execution can be accepted or not.

8. It is in this context that we must take note of the eloquent conduct of the petitioner when he received the notice of demand which threatened him of criminal prosecution on the basis of Ext.P1 cheque issued by him to the complainant. Surprisingly and significantly the accused does not respond to the notice. For obscure reasons he did not deny at that stage that the cheque is not signed by him or that it was not handed over by him to the complainant. This is indeed crucial and vital. That piece of conduct must certainly weigh with the court while considering whether PW1's evidence Crl.R.P.No. 599 of 2002 5 can be accepted or not. It is of course not the law that guilt can be presumed and held established against the accused under Section 138 of the N.I. Act if the notice of demand is not replied to. The response to the notice of demand is certainly a vital input while considering whether the assertion of the complainant on oath can be accepted or not. It is only an imprudent person of the worst variety who will indulge in such conduct of not responding to such a notice of demand. The court is expected to adopt the yardstick of a prudent mind when considering whether the fact is proved or not. It is only a very imprudent mind which will not give due significance and attach importance to such conduct on the part of the indictee not responding to the notice threatening criminal prosecution against him. No person with his head on his shoulders is likely to indulge in such artificial, improbable and strange conduct. While considering the acceptability of the evidence of PW1 this indeed is a most crucial circumstance.

9. What is the case of the petitioner? According to him he had lost the cheque leaf. When was the cheque leaf lost? Under what circumstance was the cheque leaf lost? What is the conduct of the petitioner when he Crl.R.P.No. 599 of 2002 6 realised that such cheque leaf was lost? Is there any conduct congruent to lose of such cheque leaf as alleged by the petitioner? Is there any conduct consistent with the theory of loss of cheque leaf? It is crucial and vital that there is not a single piece of acceptable conduct in which the petitioner is shown to have indulged in if as a matter of fact the cheque leaf were lost from his possession. If it were lost, one would have expected the petitioner, himself an employee of a Co-operative Society, to atleast issue a stop payment memo. That was not done. Of course, a convenient Bank Manager did attempt to oblige his customer, the petitioner, by stating in the course of cross examination that oral information was given. It is crucial that even the Manager does not say when that oral information was given and in respect of which cheque. If any such oral information were given, it is extremely unlikely that the cheque would have been dishonoured except on the ground of stop payment. The memo of dishonour does not significantly reveal such a ground for dishonour at all.

10. It is now contended that the signature in the cheque is not that of the petitioner. In the total absence of such an assertion in the reply to the notice of demand, this case of the petitioner deserves to be viewed with Crl.R.P.No. 599 of 2002 7 considerable amount of care and caution, nay suspicion and distrust. Even when he realised that the cheque leaf allegedly lost by him was being put to use by an alleged stranger to claim amount from him, he remained silent.

That conduct is certainly inconsistent with the denial of signature in Ext.P1.

11. The learned counsel for the petitioner submits that the courts below erred in invoking the jurisdiction under Section 73 of the Evidence Act to compare the signatures available in various records. In the absence of comparison of signature, there is not a semblance of material to support the denial of signature. I must note that there is no specific denial of signature at any point of time. When examined under Section 313 Cr.P.C.

the accused could not muster sufficient courage to deny his signature. A careful perusal of S. 313 statement shows that the petitioner had no intention to deny his signature appearing in Ext.P1 with courage before a court.

12. The counsel then contends that PW2, the bank Manager, has stated that the signature does not tally. It is true that PW2 was summoned as a witness for the complainant. The dishonour memo did not at all show Crl.R.P.No. 599 of 2002 8 that the signature in Ext.P1 was in any way inconsistent with the specimen signature. A complacent complainant (or his counsel) ventured to put a question during chief examination, armed with the fact that there is no endorsement on the memo of dishonour that the signatures vary, whether the signature in Ext.P1 cheque and Ext.P6 specimen signature card do not tally. PW2 had stated that the signatures do not tally. It is significant that in the memo of dishonour such an endorsement is not there. The convenient and specious assertion by PW2 that the signature in Ext.P1 does not tally with that in Ext.P6 cannot deliver the petitioner any advantage.

13. The story does not end there. Even though the cheque was dishonoured on 7.11.1995 and the petitioner was immediately thereafter informed of the same, no complaint whatsoever was made before any one to complain about the misuse of the cheque and forgery by PW1. Realising that this piece of conduct may be obviously commended upon by the court, we find a convenient Ext.D1 being pressed into service. It bears the date 12.8.1997. I am not even on the delay in submitting Ext.D1. An alert Crl.R.P.No. 599 of 2002 9 reading of Ext.D1 conveys that even in Ext.D1 the petitioner did not muster courage to deny the signature in Ext.P1. That is certainly crucial and vital.

14. The learned counsel for the respondent/complainant submits that the petitioner by his essential persuasion is not a trustworthy person. He wants to rely on the opinion given by an expert in another case, wherein the expert has opined that the petitioner is one who camouflages his signatures. I shall eschew that circumstance altogether while considering the question. The accused points out that there is admission regarding dissimilarity of signature in Ext.P1 with various other admitted signatures.

Dissimilarity in a signature is not certainly synonymous with disproof of the signature. It would be incorrect to assume that a skillful and recalcitrant indictee can avoid culpable consequences by bringing in dissimilarity in the various signatures affixed by him. That certainly is not the law. The proof of execution does not merely depend on similarity or otherwise of the signatures affixed. Even assuming that there are dissimilarities the Crl.R.P.No. 599 of 2002 10 conclusion appears to be inevitable that the cheque has been duly executed and handed over to the complainant.

15. Section 3 of the Evidence Act, when it defines the expression `proof' imports the standards of a prudent man. The court is expected to function and discharge its duties as a prudent man while considering the evidence to satisfy whether the fact is proved or not. A prudent man does not only read the lines, he must have the intelligence to read between the lines too. So construed, according to me, the evidence establishes beyond the shadow of doubt that the evidence of PW1 can be accepted and execution of Ext.P1 has been established satisfactorily. Not a semblance of doubt disturbs the judicial conscience in coming to the conclusion that execution and handing over of the cheque stand proved by the evidence of PW1, which is fortified by various circumstances that have already been referred to. The challenge raised on the first ground must and does fail in these circumstances.

16. Execution and handing over having been proved, certainly the presumption under Section 139 of the N.I.Act arises. It is not the obligation, it has been repeated many times by courts, on the complainant in Crl.R.P.No. 599 of 2002 11 a prosecution under Sec. 138 of the N.I. Act to independently establish the original transaction or the original consideration to discharge which the cheque had been issued. That is why the Legislature has carefully enacted Section 139, where there is a presumption in favour of the complainant and against the accused. The burden to rebut the presumption is on the petitioner. Until that burden is discharged, it is not necessary for the court to look for any primary evidence about the transaction or consideration. Of course, as held in Hiten P. Dalal v. Bratindranath Banerjee (AIR 2001 SC 3897), Section 139 enacts a presumption of law and to rebut such law it is not merely sufficient to generate fanciful doubts in the mind of the court.

In Narayana Menon v. State of Kerala (2006 (3) KLT 404 (SC) it has been clarified that the burden on the accused to rebut the presumption is only akin to that of a litigant in a civil case to prove his case.

Preponderances of probabilities and possibilities is the yardstick that is expected of a civil litigant and hence for an accused who attempts to rebut the presumption under Section 139 no fanciful possibility, but a practical probability which the court finds to be acceptable adopting the yardstick of Crl.R.P.No. 599 of 2002 12 a prudent mind under Section 3 of the Act has to be established to successfully discharge his burden under Section 139. We will now see whether that burden has been discharged.

17. Except to pick holes in the case of the complainant, no comprehensive attempt is made by the accused. The complainant asserted that he knows the accused and his father also and that there has been association with them for some period of time. Significantly in the course of cross examination this assertion is not disputed or denied. It is contended that the source of the complainant to advance the amount of Rs.90,000/- has not been established. It is further contended that there is difference of one day, as to whether the cheque was given on the same evening of the demand or the next day, between the evidence in chief examination and cross examination. It is contended that no witness has been examined though they were stated to be present to prove the original transaction. These, according to me, are not sufficient to persuade any prudent mind to conclude that the burden on the petitioner under Section 139 of the Act has been discharged. In these circumstances it must Crl.R.P.No. 599 of 2002 13 certainly be held that the petitioner has not succeeded in discharging the burden on him under Section 139 of the Act to rebut the presumption that the cheque was not issued for the due discharge of a legally enforcible debt/liability.

18. No other contentions are raised on merits. I am satisfied that the challenge against the verdict of guilty and conviction must, in these circumstances, fails.

19. We now come to the question of sentence. The petitioner now faces a sentence of S.I. for a period of three months and to pay a fine of Rs.5,000/- and in default to undergo S.I. for a period of one month. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I. Act in the decision in Anilkumar v. Shammy (2002 (3) KLT 852). In the facts and circumstances of the case, I do not find any compelling reasons - nay except the unworthy defence which the petitioner has taken up in this case, which can persuade this court to insist on imposition of any deterrent substantive sentence of Crl.R.P.No. 599 of 2002 14 imprisonment on the petitioner. I take a lenient view and hold that notwithstanding such unworthy conduct, the petitioner does not deserve to be incarcerated in prison for the indiscretion committed by him, provided he makes amends to adequately compensate the victim.

Subject to the compulsion of ensuring adequate and just compensation to the victim/complainant, leniency can be shown to the petitioner, who has been compelled to wait from 1995 and to fight three rounds of legal battle for the redressal of his genuine grievances. The challenge raised on the question of sentence can succeed only to the above limited extent.

20. In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld.

) But the sentence imposed is modified and reduced. In Crl.R.P.No. 599 of 2002 15 supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C. to pay an amount of Rs.1,35,000/-

(Rupees one lakh thirty five thousand only) as compensation and in default to undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant.

9. The petitioner shall appear before the learned Magistrate on or before 31.10.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.

(R. BASANT) Judge tm Crl.R.P.No. 599 of 2002 16 R. BASANT, J.

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Crl.R.P.No. 599 of 2002 17

O R D E R 24th August, 2006