IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.REV.PET.NO. 1971 OF 2009() ------------------------------ CRA.459/2007 OF ADDITIONAL DISTRICT & SESSIONS COURT (ASDHOC-III), NORTH PARAVUR) ST.2037/2004 OF JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------- AJAYGHOSH.B, AGED 26 YEARS, M.D.PROFESSIONAL, KTM COMPLEX, CHANGANACHERRY-686 101, (CORRECT ADDRESS IS AJAYGHOSH.B, AGED 26 YEARS, S/O.O.S.BASHEER, AJAYA BHAVAN, PERUNNA, CHANGANASSERY 686 102. BY ADV. SRI.R.SUDHISH RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. K.K.SAHADEVAN, KANDACHANTHARA, PALLAM P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.T.K.RADHAKRISHNAN FOR R1 SMT.K.L.SREEDEVI FOR R1 BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1971 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of July, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-III), North Paravur in Crl. Appeal No.459 of 2007 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case arose on a private complaint preferred by respondent No.1. His case is that for arranging admission for his son for MBBS Course in Karnataka Rs.7,00,000/- was given to the petitioner. Petitioner was not able to procure admission as offered and on demanding repayment of the amount he issued Ext.P1, cheque dated 23.3.2004 for the said amount. That cheque was dishonoured for insufficiency of funds on 2.4.2004 which is proved by Exts.P2 to P4. On getting dishonour intimation respondent No.1 gave statutory notice to the petitioner intimating dishonour and demanding payment. Issue of statutory notice is proved by Exts.P5 and P6. Exhibit P7 is the acknowledgment card produced by respondent No.1 in support of his contention that statutory notice was served on petitioner. Petitioner contended that statutory notice was not served on him about which I shall advert to, a little later. CRL. R.P. No.1971 of 2009 -: 2 :- 2. As regards execution of the cheque respondent No.1 gave evidence as P.W.1. He stated that Rs.7,00,000/- was entrusted with petitioner for arranging a seat for MBBS Course for his son in Karnataka State and as petitioner was not successful in that attempt, on his demanding repayment of the amount petitioner issued Ext.P1 cheque. Stand taken by petitioner is that he had no transaction with respondent No.1 nor did he issue any cheque. He lost a cheque on his way from Bangalore to Kerala on 1.11.2002. Petitioner gave evidence as D.W.1 and examined D.W.2. Courts below were not impressed by the evidence of D.Ws.1 and 2 and found in favour of due execution of the cheque as deposed by respondent No.1 and held petitioner guilty. That verdict is under challenge in this revision. Learned counsel for petitioner contends that complaint itself is not maintainable since even as per the version of respondent No.1 money was advanced not by him but by his wife and hence respondent No.1 could not have preferred the complaint. Further contention is that due execution of the cheque is not proved. 3. In the complaint respondent No.1 stated that the amount was paid to the petitioner by respondent No.1 through his wife. In the proof affidavit respondent No.1 stated that he advanced CRL. R.P. No.1971 of 2009 -: 3 :- Rs.7,00,000/- to the petitioner. It is based on the said averment in the complaint that it is argued by leaned counsel that since amount was given by the wife, respondent could not prefer the complaint. For two reasons I am unable to accept that contention. Firstly what is averred in the complaint is only that amount was paid to the petitioner by respondent No.1 through his wife. In other words, payment flowed from respondent No.1 himself, though it was channeled through his wife. Secondly, cheque in question is drawn in the name of respondent No.1. He is the payee under the cheque. A complaint under Sec.138 of the Act could be preferred only by the payee or the holder in due course. Assuming that money belonged to wife of respondent No.1, so far as payee under the cheque is respondent No.1 he alone could prefer the complaint. Though in respect of a promissory note which also a negotiable instrument, a Division Bench of this Court held in Velappan v. Vasu (1984 KLJ 850) that (of course in respect of civil proceeding) once execution of a promissory note is admitted or proved a contention by the defendant that plaintiff is only a benamidar cannot be sustained. That view was followed in Jawahar Trading Corporation v. Ramadas (1989 (2) KLT 932) as well. There is no reason why the principle applicable to a CRL. R.P. No.1971 of 2009 -: 4 :- demand promissory note should not apply in the matter of cheque as well. 4. Coming to the question of execution of cheque I referred to the evidence let in by the parties. Petitioner as D.W.1 stated that he lost the cheque while traveling from Bangalore on 1.11.2002. He stated that when the vehicle in which he was traveling reached Deewatipetti, vehicles were blocked in connection with Karnataka- Kaveri issue and some persons barged into the vehicle in which he was traveling and took away the belongings of travelers. His suitcase, money and cheque leaves were also lost. Though he claimed that in connection with that local police registered crime No.1144 of 2002 no record pertaining to that has been produced. As against the version of D.W.1 (petitioner) that he lost cheque leaves, etc, while traveling from Bangalore to Kerala, his witness (D.W.2) says that incident occurred when the vehicle in which D.W.2 was the cleaner and in which petitioner was travelling was going from Pathanamthitta to Bangalore. There is material contradiction in the evidence of D.Ws.1 and 2 regarding that. It is also difficult to think that cheque leaves and other records allegedly taken by Karnataka- Kaveri agitators at Deewatipetti came to the hands of respondent CRL. R.P. No.1971 of 2009 -: 5 :- No.1 who is residing at Kottayam. Even going by the evidence of petitioner as D.W.1 it is not as if there was no such transaction as claimed by respondent No.1. He says that respondent No.1 had paid Rs.5,00,000/- to a friend of his for arranging admission for the son of respondent No.1 at Bangalore, the friend had almost arranged the seat but as he demanded a further amount respondent No.1 backed out. According to respondent No.1 he paid the amount at the office of petitioner at Changanacherry where the petitioner was practicing as an Advocate for sometime and later shifted his field of operation to Bangalore. Though in the cross-examination of respondent No.1 there was no challenge to signature of petitioner in Ext.P1 when petitioner gave evidence as D.W.1 he made an attempt to deny that the cheque contained his signature. Courts below were not impressed by that denial. It would appear that an attempt was made to get the disputed signature examined by an expert. But that had to be dropped because specimen signatures were not send to the expert. At any rate it is to be noted that bank officials who had occasion to verify the signature in Ext.P1 with the specimen signature of the account holder found no difference and the dishonour was only for insufficiency of funds. Courts below have considered the evidence let in by parties CRL. R.P. No.1971 of 2009 -: 6 :- and concluded in favour of the case pleaded by respondent No.1 that petitioner issued the cheque for repayment of the sum of Rs.7,00,000/-. I do not find reason to interfere with that concurrent finding in this revision. 5. Another argument advanced is concerning service of notice. Exhibit P7 is the acknowledgment card produced by respondent No.1. When Ext.P7 was introduced by respondent No.1 in the trial court in the course of his evidence, there was no challenge to the signature of petitioner on Ext.P7 but when petitioner gave evidence as D.W.1 he contended that statutory notice was not served on him and that he did not sign Ext.P7. There is no reason to think that registered notice sent to the petitioner in his address was received by somebody other than petitioner himself. I can only understand that petitioner made a denial of the signature in Ext.P7 also to avoid the courts in compare the signature in Ext.P1 with the signature in Ext.P7. When a notice is sent by registered post in the correct address it should normally reach the addressee. I have no reason to reject Ext.P7 which shows that notice was served on petitioner. On going through the records and hearing counsel on both sides, I do not find justifiable reason to interfere with the conviction of CRL. R.P. No.1971 of 2009 -: 7 :- petitioner. 6. Turning to the sentence part of judgments of courts below, question is whether sentence awarded is excessive. As confirmed by the appellate court there is the verdict of simple imprisonment for three months and direction for payment of compensation of Rs.7,01,000/- with default sentence of forty five days. Learned counsel submitted that substantive sentence may be modified. Considering the nature of offence and object of legislation, I am satisfied that simple imprisonment till rising of the court and fine of Rs.7,00,000/- are sufficient in the ends of justice. In case of non-payment, petitioner has to undergo simple imprisonment for three months. 7. Counsel for petitioner requested four months’ time to deposit the fine in the trial court. Counsel submits that petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant four months’ time to the petitioner to deposit fine in the trial court. Resultantly, this revision is allowed in part to the following extent: CRL. R.P. No.1971 of 2009 -: 8 :- (i) Substantive sentence as modified by the appellate court and direction for payment of compensation are set aside. (ii) Petitioner is sentenced to undergo simple imprisonment till rising of the court and to pay fine of Rs.7,00,000/- (Rupees Seven lakhs only) and in case of default , to undergo simple imprisonment for three months. (iii) Petitioner is granted four months’ time from this day to deposit the fine in the trial court failing which he shall undergo simple imprisonment as above stated. (iv) Fine if realised shall be given to respondent No.1 as compensation under Section 357(1) of the Code of Criminal Procedure. Petitioner shall appear in the trial court on 5.11.2009 to receive the sentence. Till then warrant if any against petitioner will be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv