IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 Crl.Rev.Pet.No. 884 of 2004(A) ------------------------------------------------- CRA.107/1996 of ADDL. SESSIONS COURT (ADHOC-II), PATHANAMTHITTA ST.91/1995 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/ACCUSED: K.RAMACHANDRAN PILLAI, VAZHAPILLIL HOUSE, MULAKUZHA VILLAGE, KOZHUVALLOOR, CHENGANOOR. BY ADV. SRI.K.S.MOHAMED HASHIM RESPONDENTS/RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. V.G.JOSEPH, VAZHAPLAVIL HOUSE, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW FOR R2 PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.884 of 2004 -------------------------- ORDER Petitioner, the accused in S.T.No.91/1995 on the file of Chief Judicial Magistrate's Court, Pathanamthitta, filed this revision challenging the concurrent conviction and sentence for the offence under Section 138 of Negotiable Instruments Act. Second respondent lodged the complaint alleging that petitioner borrowed Rs.1,85,000/- and towards its repayment, issued Exhibits P1 and P2 cheques, drawn in his account maintained in Pathanamthitta Branch of Indian Overseas Bank respectively dated 5.12.1994 and 30.1.1995 for Rs.40,000/- and Rs.1,45,000/-. When the cheques were presented for encashment, they were dishonoured under Exhibits P3 memo, as there was no sufficient amount in the account. Second respondent sent Exhibit P9 notice both in the residential address as well as in his address as Indian Oil Corporation Dealer, CRRP 884/04 2 Pathanamthitta. Petitioner did not pay the amount and thereby committed the offence under Section 138 of Negotiable Instruments Act. 2. Learned Magistrate took cognizance of the offence. Petitioner, on appearance, pleaded not guilty. Second respondent was examined as PW1 and the Manager of the Bank was examined as PW2, Exhibits P1 to P10 were marked. When petitioner was questioned under Section 313 of Code of Criminal Procedure, apart from denying the case stated by PWs 1 and 2, he did not offer any explanation. He did not adduce any evidence also. 3. Learned Magistrate, on the evidence, found the petitioner guilty of the offence. He was convicted and sentenced to simple imprisonment for six months and a fine of Rs.2,15,000/- and in default, simple imprisonment for four months. Petitioner challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.No. 107/1996. Learned Additional Sessions Judge, on re- CRRP 884/04 3 appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 4. Revision petitioner would contend that courts below did not properly appreciate the evidence and in the light of the evidence of PW1, it should have been found that petitioner did not issue Exhibits P1 and P2 cheques towards discharge of any debt. It is contended that the handwriting in Exhibits P1 and P2 are different and that aspect alone is sufficient to disbelieve the evidence of PW1. It is also contended that evidence of PW1 is insufficient to prove the transaction or issuance of the cheques towards discharge of any liability and therefore, the conviction is unsustainable. Finally, it was contended that the sentence awarded is excessive. 5. The fact that Exhibits P1 and P2 cheques were drawn in the account maintained by the petitioner in the name of his proprietary concern CRRP 884/04 4 Vinod Agencies is not disputed. Evidence of PW2, the Manager of Pathanamthitta Branch of Indian Overseas Bank, establishes that Exhibits P1 and P2 cheques were issued in the account drawn in the name of M/s.Vinod Agencies and petitioner, being the Proprietor, was operating that account. Evidence of PW1 with Exhibit P10 ledger extract establishes that when Exhibits P1 and P2 cheques were presented for encashment, there was no sufficient amount in the account to honour the cheques and consequently, the cheques were dishonoured. This aspect was also not disputed at the time of evidence. 6. The question is whether Exhibits P1 and P2 cheques were issued by the petitioner towards discharge of any debt or liability. It is the specific case of the second respondent that petitioner borrowed Rs.1,85,000/- and towards its repayment, issued Exhibits P1 and P2 cheques. Exhibit P1 cheque is for Rs.40,000/- and Exhibit P2 CRRP 884/04 5 cheque is for Rs.1,45,000/-. When PW1 was examined, not even a suggestion was put to him that Exhibits P1 and P2 cheques were issued by the petitioner not in discharge of any liability. True, evidence of PW1 establishes that when Rs.1,85,000/- was granted as loan to the petitioner, second respondent did not obtain any receipt or agreement evidencing the transaction. Evidence of PW1 establishes that it is due to his relationship with the petitioner, which was cordial. When petitioner has no explanation as to how the two cheques issued by the petitioner happened to be with the second respondent, I find no reason to disbelieve the evidence of PW1 that Exhibits P1 and P2 cheques were issued towards repayment of the loan. Though Exhibits P1 and P2 cheques are seen written in two different handwritings evidencing that they were not simultaneously written, when PW1 has no case that both the cheques were written together and handed over, is not fatal. Moreover, there was no cross- CRRP 884/04 6 examination on this aspect. Therefore, for the sole reason that the handwriting in Exhibits P1 and P2 are different, the case of PW1 cannot be disbelieved as canvassed by the petitioner. On appreciating the entire evidence, I find no reason to differ with the findings of the learned Chief Judicial Magistrate and the learned Additional Sessions Judge that Exhibits P1 and P2 cheques were issued in discharge of the liability. 7. Then the question is whether there was any statutory notice as provided under Section 138(b) of Negotiable Instruments Act. Though it was contended that there was no notice, Exhibit P9 notice establishes that the amount covered by the dishonoured cheques was demanded in writing within the statutory period. Exhibit P8 shows that both the notices were sent to the petitioner in his residential address as well as in his address Indian Oil Corporation Dealer, Pathanamthitta by registered post. Exhibit P7 establishes that notice CRRP 884/04 7 sent in his residential address was sent to Vinod Agencies, Indian Oil Corporation Dealer, Pathanamthitta as seen from the endorsement of the Postman. It is, thereafter, Exhibit P7 was returned unclaimed. Exhibit P6 establishes that the notice sent in the address of the petitioner as Indian Oil Corporation Dealer, Pathanamthitta was also returned unclaimed. Petitioner has no case that he did not receive any intimation or that he had gone to the Post Office to receive the notice. Petitioner has also no case that the endorsement made in Exhibits P6 and P7 are manipulated by the second respondent. He did not examine the Postman to disprove the endorsement. In such circumstances, courts below were perfectly justified in holding that second respondent has sent notices demanding the amount covered by the dishonoured cheques in writing, as provided under Section 138(b) of Negotiable Instruments Act and the said notices were returned unclaimed and hence there is CRRP 884/04 8 sufficient notice. Petitioner has also no case that he did not pay the amount as he was unaware of the demand in writing. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 8. Then the only question is regarding the sentence. Learned Chief Judicial Magistrate awarded a substantive sentence of simple imprisonment for six months in addition to a fine of Rs.2,15,000/- holding that on realisation of the fine, Rupees Two lakhs is to be paid to the second respondent as compensation under Section 357 of Code of Criminal Procedure. Considering the entire facts and circumstances of the case, interest of justice will be met if the substantive sentence is modified to imprisonment till rising of court maintaining the default sentence and compensation. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of CRRP 884/04 9 Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a fine of Rs.2,15,000/- and in default, simple imprisonment for four months. On realisation of the fine, Rupees Two lakhs is to be paid to the second respondent as compensation. Petitioner is directed to appear before Chief Judicial Magistrate, Pathanamthitta on 23.09.2010. Chief Judicial Magistrate is directed to execute the sentence. 20th August, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 884/04 10 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.884 of 2004 -------------------------- ORDER 20th August, 2010