IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 Crl.Rev.Pet.No. 1590 of 2007() ------------------------------ CRA.429/2001 of ADDL. SESSIONS COURT (ADHOC), THALASSERY STC.1182/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONERS: APPELLANTS/ACCUSED NOS.1 TO 3 --------------------------------------------------- 1. M/S. HENZA SHIPPING SERVICE, POST BOX NO.547, 4TH MAIN ROAD, WEST ISLAND, COCHIN-2, REPRESENTED BY ITS MANAGING PARTNER, PIOUS DAVID. 2. PIOUS DAVID, AGED 38 YEARS, S/O. DAVID, MANAGING PARTNER, M/S. HENZA SHIPPING SERVICE, POST BOX NO.547, 4TH MAIN ROAD, WEST ISLAND, COCHIN-2. 3. AGNOS DAVID, AGED 75 YEARS, W/O. DAVID, THADATHUVILLA, JULOVUKADU P.O., ERNAKULAM. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: RESPONDENTS/COMPLAINANTS & STATE ----------------------------------------------- 1. CHELLAPPAN NAIR, S/O. KRISHNAN NAMBIAR, PENSIONER, CHALAD P.O., KANNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.K.SREEJITH FOR R1 ADV.SMT.REKHA C NAIR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN.J --------------------------------- Crl.R.P.NO. 1590 OF 2007 ------------------------------------------ Dated this the 16th day of March, 2010. O R D E R The Judicial Magistrate of the First Class-I, Kannur in S.T.No.1182 of 1997 on his file found the revision petitioners guilty and convicted for offence u/S. 138 of the Negotiable Instruments Act. First revision petitioner was sentenced to a fine of Rs.5,000/-. Revision petitioners 2 and 3 were sentenced to Simple Imprisonment for 3 months. All of them were directed to pay Rs.5,00,000/- jointly as compensation to the first respondent who prosecuted the revision petitioners before the trial court. In Crl. Appeal No.429 of 2001, the Addl. Sessions Judge, Adhoc-I, Thalassery, reduced the substantive sentence as against the revision petitioners 2 and 3 to imprisonment till the rising of the court. The compensation awarded by the trial court was enhanced to 6,00,000/- with a default sentence of Simple Imprisonment for 3 months. Assailing the above conviction and sentence as modified in appeal this revision petition was filed. 2. First respondent who was examined as PW1 had Crl.R.P.NO. 1590 OF 2007 2 succeeded to establish that Ext.P1 cheque dated 8.9.97 for Rs.5,00,000/- drawn on Indian Bank, Willington Island Branch was issued by the revision petitioners in discharge of the liability and that when Ext.P1 sent for collection it was returned dishonoured for insufficiency of funds as evidenced by Ext.P2 and P3 memo and intimation. Demanding discharge of liability, a lawyer notice was issued, copy of which was marked as Ext.P4. Despite the acknowledgment of the notice the liability was not discharged. 3. The revision petitioners took up a defence that the first revision petitioner was originally a proprietary firm owned by the father of the 2nd revision petitioner, who is the husband of the 3rd revision petitioner and after his death the proprietary firm was converted to a partnership firm. The proprietor had borrowed a sum of Rs.50,000/- from the first respondent on various occasions and though the liability was discharged, regarding interest, there was some dispute basing upon which the first respondent rushed to the office of the first revision petitioner, intimidated the 2nd revision petitioner and snatched away three signed, but blank cheques and that Ext.P1, which is one of such cheques, is not supported by any consideration. In support of that plea the 2nd revision petitioner was Crl.R.P.NO. 1590 OF 2007 3 examined as DW1. According to DW1, his father had availed a loan of Rs.5,000/-. In discharge Rs.95,000/- was returned towards principal and interest. But, later there occurred some discord. After the death of father, the 1st respondent requested to make him a partner in the business and that on one day, the first respondent, along with four or five persons rushed to the office and three signed blank cheques were forcibly taken away. In cross examination he had admitted that he did not make any complaint before the Police, but brothers had complained to the Police. How the brothers were interested in filing complaint is not disclosed. However, no copy of the complaint was brought on record and there is nothing to show that there was any such complaint. He had to admit that no intimation was given to the bank. It is brought out in evidence that the revision petitioners were doing business at Cochin and that they had been doing so for a pretty long time. What persuaded the 2nd revision petitioner to keep the signed cheques was not at all revealed out in evidence. The explanation of DW1 regarding the manner in which the 1st respondent obtained Ext.P1 cheque is not convincing. It did not appear probable. It is in the above circumstances the courts below disbelieved the evidence of DW1. I Crl.R.P.NO. 1590 OF 2007 4 find no reason to arrive at a divergent finding. On the other hand little material is disclosed to disbelieve PW1. 4. The learned counsel for the revision petitioners vehemently argued that in cross examination, PW1 had admitted that the amount covered by cheque was given in instalments and he had also deposed that for paying a sum of Rs.3,00,000/- in 1996, Rs.1,75,000/- were withdrawn from the bank and that Ext.D1, a true extract of the account would belie the evidence of PW1 regarding withdrawal of Rs.1,75,000/-. For two reasons, I find that no reliance can be given to Ext.D1. The first reason is that though was produced to contradict first respondent it was not confronted with Ext.D1. The other reason is that it contains transactions only from 10.3.1996 onwards. Whereas the case of the first respondent was that the payment was made in 1996. Whether there was any withdrawal between 1.1.1996 and 10.3.1996 is not born out from Ext.D1. Even if Ext.D1 is reliable, it is not sufficient enough to impeach the evidence of PW1 as Ext.D1 does cover only a portion of the period deposed by PW1. In the above circumstances, no reliance can be given to Ext.D1 to arrive at a conclusion that PW1 is not believable. Crl.R.P.NO. 1590 OF 2007 5 5. I was taken through the evidence of PW1 and DW1, by the learned counsel for the revision petitioners. Thought PW1 was subjected to searching cross examination, no material was brought out to disbelieve him. On the other hand defence version, as mentioned earlier, did not appear probable. In fact borrowal is admitted by the revision petitioners. Only the quantum is disputed with plea of discharge. Regarding the quantum, they would state at one instance that it was Rs.5000/-. Then they would change and suggest that it was Rs.50,000/-. In statement u/s.313 Cr.P.C, revision petitioners would state that Rs.50,000/- was borrowed by late David in three instalments and paid back Rs.50,000/- and there was dispute between 1st respondent and David regarding interest. In cross examination it was first suggested to PW1 that Rs.5000/- was borrowed. Later, it was suggested that Rs.50,000/- was borrowed and it was discharged through Bank. If the discharge was through Bank, there would have been documents. But no document was produced. Second revision petitioner as DW1 had deposed that Rs.5000/- was borrowed by three instalments and Rs.95,000/- was discharged towards principal and interest. DW1 has no case of arising of dispute regarding interest. According to DW1, without any Crl.R.P.NO. 1590 OF 2007 6 provocation or reason, the cheques were forcibly snatched away by the 1st respondent. Altogether, defence appears to be a cock and bull story. Quantum of loan and discharge deposed by DW1 is not consistent. Such being the materials on record, I find that the courts below had correctly apprised the evidence and given reliance of the testimony of PW1 and arrived a finding of fact that Ext.P1 was supported by consideration and issued in discharge of liability. The revision petitioner could not point out any illegality, error or impropriety in the appreciation of evidence made by the courts below. The evidence of PW1 that Ext.P1 was drawn for valuable consideration and issued in discharge of liability is supported by presumptions u/s.118 and 139 of the Negotiable Instruments Act. Defence had not at all succeeded to rebut the legal presumption. The defence evidence regarding the manner through which the 1st respondent obtained Ext.P1 cheque is not at all believable for the reasons stated earlier. It is pertinent to note that the revision petitioners remained silent after acknowledging the notice demanding discharge. Their silence after acknowledging notice looms large and persuades me to find against the revision petitioners in concurrence with courts below. The silence of the Crl.R.P.NO. 1590 OF 2007 7 revision petitioners after acknowledging the notice demanding discharge indicates that in fact they had no defence and the defence now advanced is the one invented later and requires no consideration. 6. The learned counsel for the revision petitioner had advanced another contention that the 2nd and 3rd revision petitioners were not responsible to, the firm for the conduct of the business of the firm. It was also argued that regarding the involvement of 2nd and 3rd revision petitioners in the conduct of the business and their responsibilities, there is no pleadings or evidence. Though ther4e is no specific evidence to that effect, there is specific pleadings which was not denied by DW1. DW1 has no case in the box that himself and his mother, the 3rd revision petitioner are not responsible to the firm for the conduct of the business. Whereas DW1 admitted that himself, third revision petitioner and others are partners. He has no case that revision petitioners 2 and 3 are sleeping partners or that they are not responsible to the firm for the conduct of business. When questioned u/s.313 Cr.P.C also, they have no such case. In the above circumstances, the contention of the learned counsel requires no consideration as it is devoid of merits. Crl.R.P.NO. 1590 OF 2007 8 7. The learned counsel for the revision petitioner submitted that during the course of cross examination, PW1 had admitted that a part of the payment was before 1994 , and so, according to the learned counsel, as on the date of the cheque dated 8.9.97, a portion of the liability was barred by limitation and in this view of the matter, it could not be said that there was enforceable debt or liability to the extent to which Ext.P1 was drawn. But the very consistant case of the first respondent is that the revision petitioners received the amount in various instalments on promise to make him a partner of the first respondent firm and that the last payment was in 1996 when Rs.3,00,000/- paid after the retirement of the 1st respondent from Cochin Port service. Since this evidence of PW1 was not specifically denied by DW1, I am persuaded to believe it. If revision petitioners had acknowledged amounts from the first respondent in instalments agreeing to make him a partner of the 1st revision petitioner, the 1st respondent would not be entitled to claim partnership till the last instalment is paid. Till then, the earlier payments would be in the hands of the payee as a trustee. The 1st respondent would be entitled to claim back the amount, either only on refusal to make him partner or when the 1st respondent withdraws Crl.R.P.NO. 1590 OF 2007 9 from the proposal. Here, according to PW1, the revision petitioners did not keep up their promise to accept the 1st respondent as a partner and it is in that circumstance, the 1st respondent demanded back the amount and cheque was issued. With the given set of facts, for claiming return of the amount, the date of payment of the last instalment had to be treated as the date of payment for calculating period of limitation. The last payment being in 1996, on 8.9.97, when Ext.P1 was delivered, there was enforceable liability. Therefore, the contention that there is no enforceable liability to the extent to which Ext.P1 was drawn is devoid of merits. 8. To conclude, I find that the courts below had correctly appraised the evidence on record and arrived at a right finding of guilty. The conviction under challenge is sustainable. 9. The appellate court was very lenient in reducing the sentence to imprisonment till the rising of the court and compensation. The compensation ordered is quite appropriate. If at all the sentence is erred, it is only towards leniency. So the sentence also requires no interference. In the result, the revision petition is devoid of merits. Accordingly it is dismissed. Revision petitioner is granted two Crl.R.P.NO. 1590 OF 2007 10 months time to remit the fine and compensation. Till, then the bail bond executed the revision petitioners' shall remain in force. P.S.GOPINATHAN,JUDGE. pm