IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 588 of 2001() ----------------------------- CRA.639/1999 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.268/1997 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- C.P.CHANDRA MOHAN, L.I.C. INDIA DIVISIONAL OFFICE, O.S.DEPARTMENT, KOZHIKODE. BY ADV. SRI.C.P.CHANDRASEKHARAN (CALICUT) SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT(S)/STATE & RESPONDENT/COMPLAINANT: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.GOPINATH, S/O.NARAYANAN NAIR, KONAYI ELEVATOR INDIA LTD., K.G.ROAD, KOZHIKODE. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.588 of 2001 -------------------------------------- Dated this the 2nd day of June, 2009. ORDER This revision is in challenge of judgment of learned II Additional Sessions Judge, Kozhikode in Crl.Appeal No.639 of 1999 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act and sentence to undergo simple imprisonment for six months and payment of fine of Rs.3,000/-. Case of respondent No.2 is that he got acquainted with petitioner who was a staff of LIC of India. Petitioner was running a private kuri transaction in which he also joined for a kuri having sala of Rs.60,000/- and the said sum of Rs.60,000/- was due to respondent No.2. While so, petitioner borrowed Rs.50,000/- from him and issued cheque dated 30.9.1996 for the discharge of that liability. That cheque was dishonoured for insufficiency of funds and inspite of giving notice intimating dishonour and demanding payment, petitioner did not respond. Respondent No.2 gave evidence as PW1 and examined PWs 2 and 3. He proved Exts.P1 to P7. Contention raised by the petitioner is that he had no transaction with respondent No.2 and instead, had dealings with PW3 and in connection with that, signed blank cheque was given which has been misused. Courts below did not accept that explanation of the petitioner and found in favour of due execution of the cheque. Crl.R.P.No.588/2001 2 2. It is contended by petitioner that case of respondent No.2 as to the transaction stands exploded by the evidence of PW3 and in the light of the apparent contradiction, courts below were not justified in upholding the case pleaded by respondent No.2. Further contention advanced is that at any rate petitioner was running a chitty transaction in violation of the Money Lenders Act and hence the amount raised by such transaction is not legally recoverable. 3. In the complaint preferred by respondent No.2 it is stated that on termination of the kuri conducted by the petitioner, he got Rs.60,000/- and from the said amount petitioner borrowed Rs.50,000/- undertaking to repay the same on demand and on demanding repayment, petitioner issued the cheque in question. Respondent No.2 gave evidence as PW1 and stated that during the relevant time he was working as lift supervisor in Kone Elevation India Ltd, he used to visit the office of LIC in connection with his work and got acquainted with the petitioner. Petitioner was then running a kuri. He subscribed to a kuri having a sala of Rs.60,000/-. Kuri was terminated in June, 1996. Rs.60,000/- was due to respondent No.2. Then, petitioner asked him whether he is in dire need of money and on his saying that he wanted to deposit the amount in bank for the marriage of his daughter, petitioner told him that he is in need of Rs.50,000/- and would return the amount as and when required by respondent No.2. Accordingly he gave Rs.50,000/- to the petitioner and in September, 1996 when Crl.R.P.No.588/2001 3 he demanded repayment petitioner issued the cheque. In cross examination he stated that he was not aware that it is illegal to conduct a kuri without licence. He admitted that the amount in the cheque was written by PW3 who is also a staff of the LIC but denied the suggestion that there was transaction between the petitioner and PW3 and the cheque in question was given to PW3. PW3 gave evidence supporting respondent N o.1. I have gone through the evidence and do not find any discrepancy or contradiction in the averments in the complaint. In substance what respondent No.2 pleaded and stated on oath is that Rs.60,000/- was due to him from the kuri conducted by petitioner and out of the said amount, Rs.10,000/- alone was given to him and the balance sum of Rs.50,000/- was retained by the petitioner for his needs with the permission of respondent No.2 undertaking to pay the amount as and when demanded. There is no discrepancy in the evidence as contended by the petitioner. 5. As to the due execution of the cheque in favour of respondent No.2 I have referred to the evidence of PWs 1 and 3. According to the petitioner, his dealings were with PW3 and he gave cheque to PW3. Respondent No.2 as well as PW3 denied the suggestion. As against that, petitioner has not adduced any evidence to prove or even probabilise that the cheque was given to PW3 in the circumstances pleaded by him. There is also failure on the petitioner to reply to the notice admittedly served on him. Courts below have considered the Crl.R.P.No.588/2001 4 evidence on record and come to the conclusion that petitioner issued the cheque for the discharge of a legally enforceable debt/liability. Dishonour of the cheque for insufficiency of funds is proved by the evidence of PW2. 5. Another contention raised is that since petitioner was conducting kuri in violation of the provisions of the Money Lenders Act, the amount raised there from by respondent No.2 is not legally recoverable. Legality of recoverability of the amount must pertain to the nature of the transaction. The mere fact that petitioner had been conducting kuri in violation of the Money Lenders Act as claimed by the petitioner or any other provision of law as the case may be does not mean that the contract between the petitioner and respondent No.2 is illegal or opposed to public policy. This Court in Nadarajan v. Nadarajan (1999 (2) KLT 512) has held that merely because chitty is conducted in violation of the Chitties Act it cannot be said that the transaction is opposed to public policy, attracting Section 23 of the Contract Act and hence amount covered by the cheque is not legally recoverable. At any rate the cheque is issued not in discharge of liability of the petitioner under chitty transaction. Instead, cheque is issued for the amount petitioner borrowed from respondent No.2. It is only that respondent No.2 raised the amount by way of joining the chitty conducted by the petitioner. Therefore, I am unable to uphold the contention raised by the petitioner. I do not find reason to interfere with the Crl.R.P.No.588/2001 5 conviction of the petitioner. 6. So far as the sentence is concerned, trial court sentenced the petitioner to undergo imprisonment for six months and pay fine of Rs.3,000/-. Learned magistrate had the power to award reasonable sum as compensation under Section 357(3) of the Code of Criminal Procedure which has not been resorted to in this case. It has been held time and again that normally when there is conviction for offence punishable under Section 138 of the Act, a direction for payment of compensation should follow since such a course is in consonance with the very object of legislation. 7. So far as substantive sentence is concerned, I am inclined to think that imprisonment till rising of the court is sufficient in the ends of justice. At the same time petitioner has to pay compensation to respondent No.2 which considering the fact that the transaction was of the year 1996 and almost 13 years have lapsed is fixed as Rs.55,000/-. Learned counsel requested three months' time to deposit the compensation in the trial court. Considering the facts and circumstances of the case and the object of legislation, petitioner is granted two months’ time to deposit the compensation in the trial court. Resultantly, this revision petition is allowed to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. Crl.R.P.No.588/2001 6 ii. Sentence to the extent it concerned payment of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.55,000/- (Rupees Fiftyfive thousand only) as compensation within two months’ from this day failing which, he shall undergo further simple imprisonment for three months. iii. Amount if any deposited by the petitioner in any of the courts below shall be adjusted in the compensation directed to be paid hereby. iv. Petitioner shall appear in the trial court on 10.8.2009 to receive the sentence. Crl.M.A.No.2824 of 2001 will stand dismissed. THOMAS P.JOSEPH, Judge. cks Crl.R.P.No.588/2001 7 Thomas P.Joseph, J. Crl.R.P.No.588 of 2001 ORDER 2nd June, 2009.