IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 Crl.Rev.Pet.No. 2937 of 2010() ------------------------------------------- CRA.316/2008 OF ADDITIONAL DISTRICT AND SESSIONS (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA. ST.460/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------------- SUDHAKARAN, S/O.KRISHNAN NANU, MANETHRA EDAPPURAYIL, KOTTAMALAM UTHIMOOD P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA. BY ADV. SRI.M.T.SURESHKUMAR, SRI.RAJA VIJAYARAGHAVAN. RESPONDENTS/RESPONDENTS/COMPLAINANTS & STATE --------------------------------------------------------------------------------------- 1. M.T. ANIL KUMAR, S/O.THANKAPPAN, MUTHANGAPARAMPIL, THALACHIRA, MALAYALAPPUZHA, PIN-698 586. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2937 of 2010 ---------------------------------------- Dated the 7th Day of October, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that towards the discharge of a liability that due to the complainant, the accused issued Ext.P1 cheque dated 24.11.2006, for an amount of Rs.90,000/- which when presented for encashment was dishonoured stating “account closed” and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Pathanamthitta by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.460/2007. During the course of trial, the complainant himself mounted CRL.R.P 2937/10 -:2:- to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P12 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and to pay fine of Rs.90,000/-. The default sentence is fixed as simple imprisonment for a period of one month. It is also ordered that on realisation of the fine, the entire amount shall be paid to the complainant under section 357(1)(b) of Cr.P.C. 3. Aggrieved by the above order of conviction and CRL.R.P 2937/10 -:3:- sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 28.6.2010 in Crl.A.No.316/2008, the court of Addl. District and Sessions Judge,(Adhoc) (Fast Track-II), Pathanamthita, dismissed the appeal confirming the conviction and sentence. It is the above conviction and sentence and the verdicts of the courts below, this Crl.R.P is preferred. 4. I have heard the learned counsel for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner submitted that absolutely there is no evidence to show the transaction, execution and issuance of the cheque. It is also the submission of the learned counsel that even according to the complainant, the earlier cheque which allegedly issued by the accused was dishonored for the reason of “account closed” and therefore it is unbelievable that the complainant received another cheque issued by the revision petitioner pertained to the same account. According to the learned counsel, the CRL.R.P 2937/10 -:4:- courts below miserably failed to consider the above aspect. It is also the submission of the learned counsel that the complainant has miserably failed to establish that any legally enforceable debt was due to the complainant. According to the learned counsel, the specific case of the accused is that he had borrowed only a sum Rs.25,000/- from the complainant and the cheque in question was given as security for the said transaction and the liability has already been discharged and as such no amount is due to the complainant. According to the learned counsel, the courts below did not consider the above case of the defence. 6. I am unable to sustain the above arguments of the learned counsel. First of all, it is relevant to note that though the accused has taken a contention to the effect that he had received Rs.25,000/- from the complainant and the said debt was discharged by him, absolutely no evidence is adduced in support of the above version. It is also a question that remains unanswered is that if the debt in the said transaction was cleared off, why the CRL.R.P 2937/10 -:5:- cheques which were given as security were not demanded back. The contention of the learned counsel against the issuance of the 2nd cheque is that , PW1, the complainant when examined, had deposed before the court that towards the discharge of the liability, the accused revision petitioner initially issued Ext.P7 cheque dated 10.6.2006 and when the above said cheque was presented for encashment, the same was dishonored as per Ext.P8 dishonour memo. It is thereafter, the revision petitioner issued Ext.P1 cheque dated 24.11.2006. In paragraph 5 of the trial court judgment it is discussed and observed: “PW1 further stated that it was on getting the above said notice that the accused issued Ext.P1 cheque after taking back the original of Ext.P7. At the above said time the accused told him that the account was closed by the bank suo motu as it was inoperative for a long time. The accused promised that he would take necessary steps to revive the above said account so as to get Ext.P7 cheque honoured. The accused agreed to give back the amount by November 2006”. CRL.R.P 2937/10 -:6:- As per the above evidence of PW1, I am of the view that the contention raised by the learned counsel is not at all sustainable. From the evidence, it is crystal clear that the account was not closed at the volition of the revision petitioner but the same was suo motu closed by the bank because there was no frequent transaction and as such the account became inoperative. Nothing on record to show that even the account closed in such a situation cannot be re-operative. If that be so , I am of the view that there is no illegality in accepting the evidence of PW1 and holding that the revision petitioner had issued Ext.P1 cheque making the complainant believe that the same would be honoured after revival of the account which was closed once. In the light of the above facts and circumstances and discussion, I am of the view that the findings arrived on by the trial court as well as the appellate court are absolutely correct and no interference is called for with such concurrent findings. 7. It is also relevant to note that though the accused has taken a contention that he had availed a loan of CRL.R.P 2937/10 -:7:- Rs.25,000/- only and the said liability was cleared off, as I indicated earlier, absolutely there is no evidence to substantiate such plea. Therefore, it is crystal clear that the accused has also admitted the transaction with the complainant, though not as claimed by the complainant. If that be so, it is for the accused to establish that his liability was only Rs.25,000/- and the same was cleared and also to establish that the cheque in question was entrusted with the complainant connected with that transaction but absolutely there is no materials in support of the above contention. The complainant has produced Exts.P1 as well as Ext.P7 cheques which contained the signature of the accused from the possession of the complainant. Therefore, in the light of the decision of this Court in Johnson Scaria v. State of Kerala (2006(4) KLT 290), it is for the revision petitioner to positively establish and convince the court as to how the cheque in question reached in the hands of the complainant. In the absence of any plausible and convincing explanation, it cannot be said that the revision petitioner has discharged his burden CRL.R.P 2937/10 -:8:- in rebutting the presumption which is available in favour of the complainant under section 139 of the NI Act. Therefore I find no reason to interfere with the order of conviction concurrently recorded by the trial court as well as the appellate court. 8. As this court is not inclined to interfere with the conviction, the counsel submitted that the substantive sentence ordered by the courts below is unreasonable and exorbitant and also submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 9. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively. The cheque in question is dated 24.11.2006, that too for an amount of Rs.90,000/-. Thus as per the record and finding of the courts below, which upheld by this court, the said amount is with the revision petitioner for the last four years. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in CRL.R.P 2937/10 -:9:- a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above legal position, and the facts recorded above, I am of the view that the sentence of imprisonment requires reconsideration and while granting some time to the revision petitioner to pay the fine, the amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Accordingly, the sentence of imprisonment ordered by the courts below is modified and reduced to one day imprisonment, i.e. till the rising of the court. Thus while maintaining the sentence to pay fine, the amount is enhanced to the tune of Rs.1,00,000/- (Rs.one lakh only) and the revision petitioner is granted three months time to pay the fine amount, and in case of any default in paying the above amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for three months. Accordingly the revision petitioner is directed to CRL.R.P 2937/10 -:10:- appear before the trial court on 8th January, 2010 to receive the modified sentence and to deposit the fine amount. On realisation of the fine amount, a sum of Rs.97,250/- shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive steps, if any, pending shall be deferred till 8.1.2011 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE CRL.R.P 2937/10 -:11:- kvm/- kvm/- V.K.MOHANAN, JUDGE kvm/-