IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 Crl.Rev.Pet.No. 664 of 2005() ----------------------------- CRA.4/2002 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.529/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- P.YESHODHARAN, ANI BHAVAN, MEZHUVELI MURI, MEZHUVELI VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPALINANT AND STATE. ------------------------------------- 1. M/S.MULAMOOTTIL LEASING &HIRE PURCHASE PVT.LTD., KOZHENCHERRY, IS REP. BY ITS MANAGING DIRECTOR, JACOB THOMAS, MULAMOOTTIL HOUSE, KOZHENCHERRY, MANAGING DIRECTOR IS REP. BY HIS P. A.HOLDER, V.K.ABRAHAM, MANAGER, MULAMOOTTIL BANKERS, PATHANAMTHITTA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.PHILIP MATHEW FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.664 OF 2005 --------------------------------------------- Dated 7th June 2010 O R D E R Petitioner, the accused in C.C.529/1998 on the file of Judicial First Class-I, Pathanamthitta was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act on a complaint filed by the first respondent. Petitioner challenged the conviction and sentence before Sessions court, Pathanamhitta in Crl.A.4/2002. Learned Additional Sessions Judge on re- appreciation of the evidence confirmed the conviction but modified the sentence to imprisonment till rising of court and compensation of Rs.43,200/-, the amount covered by the dishonoured cheque under CRRP 664/05 2 Section 357(3) of Code of Criminal Procedure. Revision Petition is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Argument of the learned counsel appearing for the petitioner is that neither in Ext.P8 complaint nor in Ext.P7 notice issued under Section 138(b) of Negotiable Instruments Act, first respondent disclosed the nature of the transaction and only alleged that cheque was issued and it was dishonoured and in spite of demand amount was not paid and though PW1 was examined, he was only the holder of the power of attorney of the Managing Director of the first respondent company, who was later examined by the petitioner as DW1, and he has no personal knowledge either with regard to original transaction or issuance of the cheque CRRP 664/05 3 and courts below failed to take note of the fact that first respondent has not discharged the initial burden and hence, conviction is not sustainable. Learned counsel would argue that though first respondent is a company dealing in hire purchase, no document is produced to show the nature of the transaction or the actual amount due and in such circumstances, when first respondent did not establish that Rs.43,200/- was due to the first respondent company, on the date when the dishonoured cheque was issued, conviction is bad. Learned counsel would argue that Ext.P1 cheque was not issued towards discharge of an existing debt or liability but was one among the cheques entrusted by first respondent when hire purchase transaction was entered into and in such circumstances, the conviction is illegal. 4. Learned counsel appearing for the CRRP 664/05 4 first respondent submitted that courts below appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction. 5. True, in Ext.P7 notice and in the complaint, first respondent did not specifically plead that Rs.43,200/- was due to the first respondent. Ext.P7 notice only shows that cheque issued by the petitioner was presented and it was dishonoured for want of sufficient funds and hence the amount was demanded. Complaint shows that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt due from the petitioner. Evidence of PW1 and DW1 establish that petitioner had business transaction with the first respondent company. Though petitioner was not examined, when questioned under Section 313 of Code of Criminal Procedure, the stand taken CRRP 664/05 5 by the petitioner was that he had obtained a loan from the first respondent and in that loan transaction he had remitted 14 instalments and when the vehicle needed repair, he failed to pay the amount due to the first respondent and then he received a notice from the first respondent demanding the amount or to entrust the vehicle to the company and therefore, petitioner surrendered the vehicle to the first respondent company. It is also stated that when the vehicle was purchased, first respondent had obtained ten cheques from the petitioner and his witnesses and when he surrendered the vehicle and demanded back the cheques, though cheques were promised to return but were not returned. When PW1 was cross examined, what was suggested to PW1 by the petitioner is an entirely different story. It was suggested to PW1 that petitioner had availed loan of CRRP 664/05 6 Rs.40,000/- and he had used the vehicle for one month and thereafter with the full consent of the first respondent company it was legally transferred to Vijayan of Mezhuveli and petitioner did not ask first respondent to change the hire purchase in the name of Vijayan and without attempting to change the hire purchase in the name of the assignee, one of the cheque originally entrusted was used for presenting before the bank. Therefore, the case suggested to PW1 is different from the case set up by the petitioner at the time of his examination under Section 313 of Code of Criminal Procedure. Added to this, in spite of Ext.P7 notice, whereunder petitioner was asked to pay the amount covered by the dishonoured cheque, which was received by the petitioner, he did not send a reply. This is not the conduct of an ordinary human being if he had CRRP 664/05 7 entrusted cheques to the first respondent company in hire purchase transaction and subsequently, without the consent of the petitioner company presented the cheque and demanded the amount covered by the dishonoured cheque. If that case is true, petitioner would have definitely sent a reply immediately stating that he did not owe the amount and the cheque was not issued but was entrusted as security at the time of the original transaction. Though failure to send a notice by itself is not a ground to reject the defence case or to accept the case of first respondent, that fact also is a relevant factor to be considered in the nature and circumstances of the case pleaded. When the entire evidence is appreciated in the light of these facts, I find no reason to interfere with the findings of the courts below that Ext.P1 cheque was issued by CRRP 664/05 8 the petitioner towards the repayment of the amount due to first respondent. It is more so, when petitioner has no case that he had entrusted a signed filled up cheque at the time when the transaction was entered into and Ext.P1, on verification shows that the handwriting in Ext.P1 is with the same ink with which it is signed. Evidence also establish that first respondent had presented the cheque within the statutory period and it was dishonoured for want of sufficient funds and under Ext.P7 notice, amount was demanded within the period and complaint was also filed within the statutory period. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. Then the question is regarding the sentence. Learned Sessions Judge modified the CRRP 664/05 9 sentence to imprisonment till rising of court with compensation for the amount covered by the dishonoured cheque. Though it is provided that, if the compensation is not paid and amount could not be realised by recourse to Section 421 of Code of Criminal Procedure, petitioner is liable to undergo simple imprisonment for three months, it is not default sentence. In such circumstances, I find no reason to interfere with the sentence also. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.