IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2167 of 2010() ------------------------------ CRA.658/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.514/2002 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVISION PETITIONER(S): ACCUSED: ---------------------------------------------------------- 1. HOTEL RAJADHANI, SHORNUR ROAD, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, ABDUL KHADER, S/O.MUHAMMED, SHORNUR ROAD, PALAKKAD. 2. ABDUL KHADER, AGED 51 YEARS, S/O.MUHAMMED, VAISAKHAM, MANAGING PARTNER, HOTEL RAJADHANI, SHORNUR ROAD, PALAKKAD DISTRICT. BY ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH. RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------------ 1. MR.P.F.JETTO, S/O.P.C.FRANCIS, POOKKADAN HOUSE, AMBALLUR VILLAGE, VENDUR DESOM P.O., ALAGAPPA NAGAR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010 ALONG WITH CRRP.NO.2171 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.Nos.2167 & 2171 of 2010 ------------------------------- Dated this the 26th day of July, 2010. O R D E R As these two revision petitions are arising out of a common appellate court judgment and the parties are the same and especially when the question of law and facts involved in these cases are also same, these revision petitions are heard together and being disposed of by this common order. The revision petitioners are the accused and the 1st respondent is the complainant in the complaint. The facts that lead to the filing of the above two revision petitions are as follows :- 2. The complainant and the accused have entered into an agreement for the transfer of bar licence, which is in the name of the accused in favour of the complainant. The 1st revision petitioner/1st accused is a firm conducting a hotel Rajadhani, of which the 2nd petitioner/2nd accused is the Managing partner. Thus the complainant and the accused Crl. R.P.Nos.2167 & 2171 of 2010 2 entered into an agreement, dated 2.6.2001, by which it was agreed by the accused to transfer the bar licence, which is in the name of the accused in favour of the complainant and towards the compliance of the said agreement and the conditions thereof, an amount of Rs.1 lakh was paid as advance to the accused on the date of the agreement itself, ie., on 2.6.2001 and an additional amount of Rs.9 lakhs also paid to the accused on 5.6.2001. Again on 23.6.2001, an additional amount of Rs.5 lakhs was given to the complainant. Subsequently, when both the parties realised that the agreement dated 2.6.2001 is not workable, the accused agreed to repay the entire amount received by them from the complainant and in addition to that it was also agreed by the accused to pay Rs.50,000/- as compensation for the non-performance of the agreement. Thus towards the discharge of the above liability, altogether for a sum of Rs.15,50,000/-, the accused issued three cheques, which when presented for Crl. R.P.Nos.2167 & 2171 of 2010 3 encashment dishonoured due to insufficiency of funds in the account maintained by the accused and accordingly the complainant caused to issue statutory notices to the accused and inspite of that, no amount was paid and hence alleging the commission of the offence punishable u/s.138 of NI Act, the complainant approached the Judicial First Class Magistrate Court-III, Thrissur, by filing two separate private complaints u/s. 138 of NI Act. Thus on the above two complaints, the court took cognizance and thus instituted C.C.Nos.514/02 and 515/02. 3. In the trial court both the cases were tried together. On the appearance of the accused, the particulars of the offences alleged against them were put to them and they denied the charge and consequently the cases were further proceeded. During the course of the trial, the complainant himself was mounted to the box and adduced evidence as PW1 and also produced Exts.P1 to P15 documents, from the side of the complainant. From Crl. R.P.Nos.2167 & 2171 of 2010 4 the side of the defence, the 2nd accused himself mounted to the box and adduced oral evidence as DW1 and beside him, Dws.2 and 3 were also examined and also produced documentary evidence such as Exts.D1 to D5. Ext.P1 cheque dated 15.12.2001 for an amount of Rs.10,00,000/-, which is the subject matter in C.C.No.514/02. Whereas Exts.P2 and P3 cheques respectively for an amount of Rs.5 lakhs and Rs.50,000/- are the cheques involved in C.C.No.515/02. 4. On the basis of available materials and evidence on record, the trial court has found that the cheques in question were issued by the revision petitioners/accused for the purpose of discharging their debt due to the complainant. Thus, accordingly the court found that, the complainant has established the case against the accused/revision petitioners and consequently found that the accused is guilty and thus convicted them u/s.138 of Negotiable Instruments Act. Thus in C.C.No.514/02, on Crl. R.P.Nos.2167 & 2171 of 2010 5 conviction A2 is sentenced to undergo simple imprisonment till rising of the court and also ordered to pay compensation of Rs.10 lakhs to the complainant u/s.357(3) of Cr.P.C. and in default of payment of compensation, A2 is directed to undergo simple imprisonment for 3 months. No separate sentence is awarded against A1, being a firm. In C.C.No.515/02, the 2nd accused is sentenced to undergo simple imprisonment till rising of the court and also ordered to pay compensation of Rs.5,50,000/- to the complainant u/s.357 (3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. In this case also no separate sentence is awarded against A1, being a firm. 5. Aggrieved by the above orders of conviction and sentence, though the revision petitioners have filed two separate appeals, ie, Crl.A.Nos.658/07 and 659/07, respectively against C.C.Nos.514/02 and 515/02 of the trial court, the appellate court by judgment dated Crl. R.P.Nos.2167 & 2171 of 2010 6 8.4.2010, dismissed the appeals confirming the conviction and sentence imposed by the trial court. It is the above conviction and sentence challenged in this revision petitions. 6. Reiterating the stand taken by the accused/revision petitioners during the trial and appeal, the learned counsel for the revision petitioners submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. The learned counsel for the revision petitioners in the above cases vehemently submitted that, the findings of the courts below and the conviction and consequent sentences are liable to be set aside, as the courts below erroneously came into a conclusion that there is a legally enforceable debt due to the complainant, out of the transaction which admitted by both the parties. The learned counsel Crl. R.P.Nos.2167 & 2171 of 2010 7 specifically submitted that, both the complainant as well as the accused, though they entered into an agreement on 2.6.2001, they realised that it is an unworkable agreement and is contrary to the law and as such an illegal agreement can not be enforced. Thus towards the repayment of the amount allegedly received by the accused, the 3 cheques were issued and therefore according to the learned counsel, the amount covered by the cheques in question can not be treated as a legally enforceable liability. I am unable to entertain such a contention. There is no dispute that though the complainant as well as the accused executed an agreement on 2.6.2001, the same is not workable because it is against law and therefore they themselves decided not to go with the same and both of them were agreed to put an end to such project and finally the accused had admitted the amount received by him and towards the repayment of the said amount, he issued three cheques in question. According to me, from the Crl. R.P.Nos.2167 & 2171 of 2010 8 above facts itself it is crystal clear that the cheques in question, issued towards the repayment of the amount received by the accused, in pursuance to an agreement, when subsequently realised that the same could not be worked out. Therefore, even if the initial agreement was illegal, there is nothing illegality in repaying the amount, connected with such illegal agreement and thus the amount became legally enforceable. Both the trial court as well as the lower appellate court found that, the accused has issued three cheques towards the discharge of their liability and such concurrent finding is not liable to be interfered with in this revision petition. Therefore, the findings arrived on by the courts below and the conviction recorded against the revision petitioners has only to be approved and I do so. 7. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioners submitted that, some Crl. R.P.Nos.2167 & 2171 of 2010 9 breathing time may be granted to the revision petitioners to pay the amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to a slight enhancement with respect to the compensation amount. 8. As per the records and as per the findings of the courts below, which approved by this court, a total sum of Rs.15,50,000/-, for which the complainant is entitled to, is with the revision petitioners. But when the complainant as well as the accused entered into an agreement dated 2.6.2001, both of them were aware of the fact that the agreement can not be legally enforced into, which is more clear from D2. It is also submitted by the learned counsel for the revision petitioners that, connected with the same transaction, a civil litigation is also pending. Considering the above facts and circumstances of the case, I am of the view that while granting some time to the revision Crl. R.P.Nos.2167 & 2171 of 2010 10 petitioner to pay the due amount, nominal enhancement can be made with respect to the compensation amount. 9. In the result, this revision petitions are disposed of confirming the conviction against the revision petitioners u/s.138 of NI Act. With respect to the sentence and compensation, in C.C.No.514/02, while maintaining the sentence of imprisonment ordered by the trial court as well as the lower appellate court, the direction to pay compensation of Rs.10 lakhs is enhanced to a sum of Rs.10,75,000/-, which shall be paid within 3 months from today and in case of any default in paying the said amount within the stipulated time, the 2nd revision petitioner/A2 is directed to undergo simple imprisonment for a period of 3 months. Similarly, with respect to the sentence and compensation, in C.C.No.515/02, while maintaining the sentence of imprisonment ordered by the trial court as well as the lower appellate court, the direction to pay compensation of Rs.5,50,000 is enhanced to a sum of Crl. R.P.Nos.2167 & 2171 of 2010 11 Rs.5,75,000/-, which shall be paid within 3 months from today and in case of any default in paying the amount the said amount within the stipulated time, the 2nd revision petitioner/A2 is directed to undergo simple imprisonment for a period of 3 months. 10. It is made clear that the sentence of imprisonment in both the cases will run concurrently. Accordingly, the 2nd revision petitioner is directed to appear before the trial court on 26.10.2010 to receive the sentence and also to pay the compensation amount as ordered by this court. In case of any failure on the part of the revision petitioner in appearing before the court below as directed above, the said court is free to take coercive steps to secure the presence of the revision petitioners and to execute the sentence and to realise the compensation amount and to pay the same to the complainant. 11.The learned counsel for the revision petitioner Crl. R.P.Nos.2167 & 2171 of 2010 12 submitted that, this court may be observed that the amount of compensation ordered by this court, may be directed to be considered by the civil court at the time of disposal of the proceedings pending before the civil court, which is connected with the same transaction. The apex court in the decision in D.Purushotama Reddy & another Vs. K.Sateesh reported in (2008) 8 SCC 505 has held that, “Although, it is beyond any doubt or dispute that for the same cause of action both a civil suit and a complaint petition under section 138 of NI Act would be maintainable, in terms of section 357 Cr.P.C., a duty is cast upon the civil courts to take into account the sum paid or recovered as compensation in the criminal proceedings.” The revision petitioners are free to produce a copy of this judgment and to cite the above decision before the appropriate civil court inviting its attention to the above dictum and I am sure that the court will consider the above decision of the apex court, subject to exception Crl. R.P.Nos.2167 & 2171 of 2010 13 if any. Criminal revision petitions are disposed of accordingly. V.K.MOHANAN, Judge. ami/