IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 Crl.Rev.Pet.No. 1647 of 2010() ------------------------------ CRA.109/2009 of ADDL..DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE. CC.440/2007 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- M.ASHRAF, S/O. ABOOBACKER, POOLAKANDY HOUSE, KARANTHUR, KUNNAMANGALAM P.O., KOZHIKODE. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M/S.SHRIRAM TRANSPORT FINANCE CO.LTD., CALICUT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER AND PRINCIPAL OFFICER, BABU JOSE, SREEPPADAM BUILDING, KOZHIKODE - 32. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1647 of 2010 ---------------------------------------- Dated 28th Day of May, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner. In this Revision, he challenges the judgment dated 24.1.2009 in C.C.No.440/2007 of the Judicial First Class Magistrate of the First Class IV, Kozhikode and the judgment dated 3.4.2010 of the court of Addl.District and Sessions Judge, Fast Track (Adhoc-II), Kozhikode by which he is convicted and sentenced to undergo simple imprisonment for 6 months and to pay a compensation of Rs.9 lakhs. 2. The case of the complainant is that the complainant company engaged in business of lease and hire purchase and the revision petitioner/accused issued a cheque dated 26.12.2006 for a sum of Rs.9,25,000/-in favour of the complainant towards the discharge of the liability arose out of the hire purchase agreement CRL.R.P.NO.1647/10 -:2:- between the revision petitioner and the complainant connected with the purchase of a vehicle from the complainant company. According to the complainant, when the said cheque presented for encashment, the same was returned as dishonoured with an endorsement “payment stopped by the drawer” and “ funds insufficient”. Though the complainant caused to send a lawyer notice intimating the revision petitioner regarding the dishonour of the cheque and demanding for the payment of the cheque amount, no amount was paid. With the above allegation, the complainant company approached the trial court by filing a formal complaint after complying with the statutory formalities upon which cognizance was taken and C.C.No.440/2007 was instituted. During the trial of the above case, PW1, the Manager of the branch of the complainant company was examined and produced Exts.P1 to P9 documents. The accused himself mounted to the box and deposed as DW1 and produced Exts.D1 to D5 documents. The trial court after an elaborate CRL.R.P.NO.1647/10 -:3:- consideration of the materials and evidence on record produced by both the complainant as well as the defence, came into the conclusion that the complainant has established the execution of the cheque and thereby the complainant is entitled to get the presumption under sections 118(a) and 139 of the N.I.Act. It is also found that the accused failed to discharge the burden of rebutting the presumption. Accordingly, the Revision petitioner/accused is found guilty under section 138 of the N.I.Act and consequently, he is sentenced to undergo simple imprisonment for 6 months and to pay a sum of Rs.9 lakhs as compensation to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as 3 months simple imprisonment. 3. Challenging the above conviction and sentence, the revision petitioner/accused had though filed an appeal, by judgment dated 3.4.2010 in Crl.Appeal No.109/2009, the court of Addl.District and Sessions Court, Fast Track, Adhoc-II, Kzhikode, dismissed the appeal without any CRL.R.P.NO.1647/10 -:4:- interference. It is the above judgment of the trial court as well as the lower appellate court and the conviction and sentence imposed against the revision petitioner are challenged in this Crl.Revision Petition. 4. I have heard the learned counsel appearing for the Revision petitioner and also gone through the judgments of the courts below. 5. The learned counsel vehemently argued that in Ext.D1, the R.C particulars of the vehicle, the registering authority has endorsed and shown that the hypothecation is in favour of UTI bank and, therefore, the revision petitioner has no transaction with the complainant. Hence, according to the learned counsel, the courts below miserably failed to examine the above defence and on that ground, the judgments of the courts below are liable to be set aide. 6. On hearing the argument of the learned counsel for the revision petitioner and on perusal of the judgments of the courts below, it appears that the revision CRL.R.P.NO.1647/10 -:5:- petitioner has got a case that he had no transaction with the complainant and the loan for the purpose of purchasing the vehicle was obtained from the UTI bank, that too, on the basis of the documents executed and handed over by the revision petitioner when the vehicle was purchased from P.S.N. Automotive, Pavangad. The above contention of the defence, it appears, elaborately considered by the trial court as well as the lower appellate court. Going by the judgments and the materials relied on by the courts below, it can be seen that the revision petitioner has not disputed the execution of the cheque and issuance of the same and the signature therein, though not as claimed by the complainant. Except Ext.D1, no other documents were produced by the defence to show that he had obtained loan from UTI bank and his transaction was only with the said bank. No details are shown by the defence regarding the transaction between the revision petitioner and the said UTI Bank. The definite case of the complainant is to the effect that the revision CRL.R.P.NO.1647/10 -:6:- petitioner had entered into a hire purchase agreement with the complainant company and towards the discharge of the liability arose out of such agreement and in terms of the hire purchase agreement, revision petitioner had entrusted with them Ext.P2 cheque and thus during the trial, the complainant produced Ext.P2 cheque from their possession. The revision petitioner has no reasonable explanation as to how it reached in the complainant company. It is also borne out from the records which relied on by the courts below that the revision petitioner had paid 10 instalments to the complainant and he had received 8 receipts from the complainant connected with the said payment of amount towards instalments. It is also observed by the courts below that in Ext.P8 hire purchase agreement, the revision petitioner had put his signature which was admitted by him when he was examined as DW1. I am not proposed to examine the entire materials and evidence on record. When the complainant established his case regarding the transaction CRL.R.P.NO.1647/10 -:7:- and execution and issuance of the cheque, by producing the same from their possession, it is for the revision petitioner to give a proper and convincing account regarding the transaction, especially when he is not disputing the signature on the cheque in question and admitting the transaction regarding the purchase of the vehicle. From the mere explanation or the materials produced by the revision petitioner, which are insufficient to substantiate his case, it cannot be said that the accused in a case for prosecution under section 138 of N.I.Act has established his defence and thereby rebutted the presumption which is available in favour of the complainant. In the light of the above facts and circumstances and the materials referred above which are relied on by the courts below, I find no reason to interfere with the findings on facts and order of conviction recorded by the courts below concurrently. Hence, there is no merit in this Crl. Revision Petition. 7. Counsel for the revision petitioner submitted CRL.R.P.NO.1647/10 -:8:- that the revision petitioner is not bound to pay that much amount shown in the cheque in question and he is not in a position to raise the fine to be paid as compensation, to the complainant. The learned counsel for the revision petitioner further submitted that in case this court is not inclined to interfere with the order of conviction, the substantial sentence may be reduced and sufficient time may be granted to the revision petitioner to raise the fine amount and to make the payment. 8. I have carefully considered the above submission of the learned counsel. Considering the facts and circumstances involved in this case, I am of the view that such submission can be considered favourably, but at the same time, it is to be noted that the cheque in question is dated 26.12.2006 and that too for an amount of Rs.9,25,000/- which is due from the revision petitioner to the complainant. Though the cheque is dated 26.12.2006 and though the date of the trial court judgment and lower appellate court judgments respectively are 24-1-2009 and CRL.R.P.NO.1647/10 -:9:- 3.4.2010, so far, no amount is paid to the complainant which is a financial institution. The Apex Court in Damodar S.Prabhu v. Sayed Babalal H (JT 2010 (4) SC 457) has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above facts and circumstance and the settled legal position, I am of the view that the substantive sentence imposed against the revision petitioner can be reduced to imprisonment till the rising of the court and the revision petitioner can be sentenced to pay fine and the amount can be fixed as Rs.9,50,000/- and on failure to pay fine amount, the default sentence can be fixed as one year. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act as recorded by the trial court as well as the lower appellate court. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and he is also CRL.R.P.NO.1647/10 -:10:- sentenced to pay a fine of Rs.9,50,000/- and on failure to pay the fine amount, he is directed to undergo simple imprisonment for a period of one year and on realisation of the fine amount, an amount of Rs.9,45,000/-(Rs.Nine lakhs forty five thousand only) shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 31.8.2010 to receive the sentence and to make the payment. If there is any failure on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.NO.1647/10 -:11:- JUDGMENT Dated:..