IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 Crl.Rev.Pet.No. 1272 of 2001() ------------------------------ CRA.117/1997 of III ADDL.SESSIONS COURT, KOLLAM CC.291/1995 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... REVN. PETITIONER/ACCUSED/APPELLANT: --------------------- P.B. NOBLE, MERLYN, KADAMUKKU, KOLLAM. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE RESPONDENTS: --------------- 1. REMA SUNNY, EBENEZER HOUSE, KARIKKOD, T.K.M. COLLEGE P.O., KOLLAM. 2. STATE REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.P.B.SURESH KUMAR FOR R1 PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 2.1.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.R.P.No.1272 OF 2001-B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of January, 2009 O R D E R Petitioner, who has been concurrently found guilty under Section 138 of the Negotiable Instrument Act by the trial court as well as the appellate court, has preferred this revision petition. The trial court convicted and sentenced the petitioner to undergo simple imprisonment for nine months and to pay a sum of Rs.2,75,000/= as fine with a default sentence of simple imprisonment for three more months. The sessions court in appeal confirmed the above order of conviction and sentence. 2. The case of respondent No.1/complainant before the trial court was that the accused had issued Ext.P1 cheque dated December 31, 1994 for a sum of Rs.1,93,706.70 in discharge of a liability which had arisen from a loan transaction. But, when the cheque was presented for encashment, it was dishonoured due to insufficiency of founds in the account of the accused. A statutory demand notice issued by the complainant did not evoke any response. The accused did not discharge the liability either. Hence, the complaint. 3. Complainant got himself examined before the trial court as PW2. The Bank Manager was examined as PW1. Exts.P1 to P7 were also marked on the side of the complainant. 2 Crl.R.P.No.1272/2001 Accused did not adduce any oral evidence but, Exts.D1 to D6 were marked on his side. 4. The accused candidly admitted execution and issuance of Ext.P1 cheque. But the defence set up by him before the trial court was as hereunder. 5. On March 01, 1992 the accused had borrowed Rs.One lakh from the complainant and issued Exts.D1 to D4 cheques for Rs.25,000/= each in discharge of the said liability. When the complainant demanded return of the money, the accused requested for some more time. However, the complainant wanted the accused to pay interest at the rate of 3.5% on the loan amount, payable from December 01, 1993 with quarterly rests. Thus calculated, the total liability came to Rs.2,01,157.36 which was rounded to Rs. Two lakhs. As agreed between the parties, the accused issued a cheque (Ext.D5) for Rs.One lakh dated December 01, 1993. Consequently Exts.D1 to D4 cheques for Rs.25,000/= each were re-dated as 1.12.1993 and in addition to that, the accused issued a cheque dated December 1, 1993 for the balance sum of Rs. One lakh (Ext.D5). But the accused could not repay the amount even on December 31, 1994. Therefore, the accused agreed to pay interest on the entire outstanding amount at the rate of 3% with monthly rests. The total liability thus calculated, came to Rs.2,93,706.76. Ext.D5 dated 31.12.1993 for Rs. One lakh was re-dated as December 31, 1994. The accused issued Ext.P1 cheque for the balance 3 Crl.R.P.No.1272/2001 sum of Rs.1,93,706.76. The said cheque was the subject matter of the present complaint. 6. I have extracted the case set up by the accused in his statement given under Section 313 of the Code of Criminal Procedure, in order to understand the gamut of his defence before the trial court. A perusal of the statement given by the accused under Section 313 of the Code will clearly show that he had not only admitted his liability but also the execution of Ext.P1 cheque in discharge of the said liability. The l earned magistrate considered the oral and documentary evidence very elaborately and came to the conclusion that the accused was guilty of the offence punishable under Section 138 of the Act. Accordingly, he was convicted and sentenced as stated above. Learned Sessions Judge in appeal concurred with the finding entered by the learned Magistrate and confirmed the order of conviction and sentence. 7. In this context, it may have to be mentioned that when this revision petition came up for consideration yesterday (January 01, 2009), a junior colleague of Sri. Gopakumaran Nair, Senior Advocate, had addressed the court. I was taken through the orders passed by the trial court as well as the appellate court. I had also gone through the deposition of witnesses and the relevant documents. In fact, the connected appeal (Crl.A.No.273/2000) was also argued by the learned junior counsel. The two cases were adjourned to today for further hearing in order to enable the senior 4 Crl.R.P.No.1272/2001 counsel to address further arguments, if any. 8. When the case was taken up today, learned senior counsel submitted that he intends to make an attempt to settle the matter and to advise his client accordingly. He stated that he would contact his client immediately. Therefore, the case was adjourned and it was taken up after lunch. 9. Learned senior counsel submitted before me that the petitioner/accused is prepared to settle the matter and pay off the liability. But he stated that the petitioner/accused requires at least two to three months to raise the money. He therefore sought adjournment of the case. 10. Sri. Suresh Kumar, Advocate, who appears for the complainant both in the revision petition as well as in the connected appeal submitted that adjournment may not be granted to find out the possibility of settlement. Learned counsel pointed out that the two cheques were issued way back in the year 1993-94. 11. When the learned senior counsel insisted for adjournment of the two case in order to find out whether a settlement is possible, I refused to adjourn the case and requested the learned senior counsel to complete his arguments, if any. At this stage, learned senior counsel submitted that he does not intend to argue the case and he proposed to relinguish the vakalath. He went out of the court hall abruptly without arguing the case any further. 12. I have heard learned counsel for the complainant at 5 Crl.R.P.No.1272/2001 length and perused the entire materials available on record. 13. As mentioned earlier, the accused had admitted execution and issuance of Ext.P1 cheque. He admitted that he had borrowed a sum of Rs. One lakh from the complainant and issued Exts.D1 to D4 cheques for Rs.25,000/= each at that time. But, since he could not repay the amount borrowed by him within the stipulated time, he had requested for enlargement of time and agreed to pay interest at the rate of 3.5% with quarterly rests. For Rs.One lakh, thus total liability come to Rs.Two lakhs. In discharge of which, he issued Ext.D5 cheque for Rs. One lakh payable by December 31, 1993. Exts.D1 to D4 were re-dated to coincide with the date of Ext.D1 cheque. But still, the accused could not discharge the liability. Therefore, the same process was gone through again. Of course, this time the rate of interest was reduced. Anyhow, the fact remains that the accused admitted issuance of Ext.P1 cheque for Rs.1,93,706.70/= and also the fact that it had been dishonoured due to insufficiency of funds in the account of the accused. Significantly, he did not send any reply to the statutory demand notice. Thus the admitted position that emerged before the trial court was that there was no dispute with regard to the liability and the accused had conceded execution and issuance of Ext.P1 cheque. But the only contention taken up by the accused appeared to be that rate of interest claimed by the complainant was totally unconscionable and therefore the interest could not have been 6 Crl.R.P.No.1272/2001 enforced by taking recourse to prosecution under Section 138 of the Act. In other words, the contention was that the amount covered under Ext.P1 cheque included interest also. The accused having admitted his liability and also having issued Ext.P1 cheque acknowledging the liability, he cannot be heard to say that on dishonour of the said cheque no offence under Section 138 would be attracted. In my view, the trial court as well as the appellate court had justifiably repelled the untenable contentions and found the petitioner guilty. Therefore, I have no hesitation to confirm the order of conviction passed by the courts below against the petitioner. 14. However, in the matter of sentence, I am satisfied that some leniency can be shown especially since, it is brought to my notice that the complainant and the accused are close relatives and also since he has shown his preparedness to try for a settlement. He can be given an opportunity to pay of the liability and avert the substantive sentence. 15. Therefore, while confirming the order of conviction, substantive sentence of imprisonment of nine months is set aside. Petitioner is directed to suffer imprisonment till the rising of the court. However, he shall pay Rs.1,95,000/= as compensation to the complainant under Section 357(3) of the Code of Criminal Procedure. 16. Petitioner shall appear before the trial court on February 16, 2009 to receive the sentence. On his appearance, learned Magistrate shall ensure that petitioner 7 Crl.R.P.No.1272/2001 undergoes imprisonment till the rising of the court on that day and remits Rs.1,95,000/= as compensation to be payable to the complainant under Section 357(3) of the Code. If the petitioner fails to appear and remit the amount as directed above, sentence imposed on him by the appellate court shall come into force. (A.K.BASHEER, JUDGE) cl 8 Crl.R.P.No.1272/2001 A.K.BASHEER, J. CRL.R.P.No.1272/2001-B O R D E R 2nd January, 2009 9 Crl.R.P.No.1272/2001