IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 Crl.Rev.Pet.No. 3153 of 2004(D) ------------------------------- REVN. PETITIONER/APPELLANT/ACCUSED ---------------------------- K.NAZAR, S/O. KOYAKUNJU, ARPHA MANZIL, S.B.MARKET P.O., KARUNAGAPPALLY. BY ADV. SRI.P.A.AZIZ SRI.E.J.THOMAS SRI.I.G.MANOHARAN RESPONDENT/RESPONDENT/COMPLAINANT -------------------------- 1. SHANGRILLA FINANCIAL SERVICES PVT.LTD., REPRESENTED BY ITS EXECUTIVE DIRECTOR, P.H.KAMAL, PUTHENPURAYIL HOUSE, MUDAVOOR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.FAZIL FOR R1 SRI.P.T.ARUNKUMAR FOR R1 PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C.HARI RANI, J * * * * * * * * * * * * Crl.R.P.No.3153 of 2004 ---------------------------------------- Dated this the 17th day of February 2011 O R D E R The revision petitioner/accused challenges the concurrent verdict of guilty and conviction for the offence under Section 138 of the Negotiable Instruments Act entered into by the courts below. 2. The case of the complainant in brief is as follows: The accused availed a total loan of Rs.1,20,000/- as per hire purchase agreement for the purchase of vehicle No.KLN 2705 on 03/10/1997. The accused agreed to remit the amount with interest in 30 instalments at the rate of Rs.5,500/- per month. The instalments due from 03/07/1998 to 03/06/1999 were defaulted by the accused and when the complainant demanded for money, Ext.P1 cheque for Rs.80,300/- was issued by the accused to the complainant on 15/7/1999 towards the amount due on that date. That cheque, when presented for encashment, was dishonoured by the bank due to insufficiency of funds. The statutory notice sent to the accused by the complainant was accepted; but no reply has been sent by the accused. The Crl.R.P.No.3153/04 2 accused failed to pay the amount also. Hence the complaint was filed by the complainant in the month of September 1999. The defence taken by the accused was that while availing the loan under the hire purchase agreement the complainant obtained two signed blank cheques and the complainant misused one of the blank signed cheques which was not issued to discharge any debt or liability. It was also the case of the accused that the entire loan amount covered under the hire purchase agreement was discharged by the accused. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the 1st respondent. It is submitted by the learned counsel for the revision petitioner/accused that on going through Exts.D1 and D2 receipts dated 03/01/2000 and 04/01/1999 respectively produced by the accused before the trial court for Rs.40,000/- and Rs.39,000/- it would reveal that the amount covered under Ext.P1 cheque has been discharged by the accused and that no amount was due from the accused to the complainant. The learned counsel for the 1st respondent has disputed the discharge of the amount covered under Ext.P1 cheque by Exts.D1 and D2 as argued by the learned counsel for Crl.R.P.No.3153/04 3 the revision petitioner. 4. The courts below entered into a concurrent finding that offence under Section 138 of the Negotiable Instruments Act has been proved by the complainant and the discharge of the amount covered under Ext.P1 as put forward by the accused has not been proved and that the amount covered under Exts.D1 and D2 cannot be given credit to towards the cheque amount covered under Ext.P1. According to the complainant, Ext.P1 cheque was issued by the accused to him on 15/7/1999 for the instalment payment due for the period from 03/07/1998 to 03/06/1999 and it was handed over to him while the complainant demanded that amount. That cheque, when presented for collection, was bounced by the bank for the reason 'insufficiency of funds'. Subsequently, a complaint has been filed by the complainant before the trial court after complying with all the formalities. The courts below, after considering the evidence adduced by the complainant and also documents produced by both the complainant and the accused, have found that the accused was guilty for the offence under Section 138 of the Negotiable Instruments Act. The trial court sentenced the revision Crl.R.P.No.3153/04 4 petitioner to undergo simple imprisonment for nine months and to pay a fine of Rs.5,000/- and in default of payment to undergo simple imprisonment for a further period of two months. It was also directed that if the fine amount was realised from the accused, that amount can be given to the complainant as compensation under Section 357(3) Cr.P.C. The accused preferred appeal before the first appellate court and the conviction of the appellant was confirmed. In supersession of the sentence imposed by the trial court, the appellant/accused was sentenced to undergo simple imprisonment for one month and to pay a sum of Rs.80,000/- as compensation to the complainant and in default of payment of that amount, the accused to undergo simple imprisonment for three months. 5. Against the concurrent finding of conviction and sentence imposed by the courts below, this revision petition has been preferred by the accused. The jurisdiction of revision is essentially the power and the duty of superintendence and correction. The crucial question to be decided is whether the findings of fact rendered by the courts below are so grossly erroneous or perverse as to warrant revisional interference. The Crl.R.P.No.3153/04 5 trial court has entered into a finding of conviction and sentence after considering the oral evidence adduced by the complainant as PW1 and after appreciation of documentary evidence relied on by both sides. The fact that no reply has been sent by the accused even after the acceptance of the lawyer's notice sent on behalf of the complainant and the non-examination of the accused to prove the case of discharge of the amount etc. can be seriously taken note of against the accused. On appreciation of the evidence, both the trial court as well as the appellate court have come to the conclusion that the complainant has proved that Ext.P1 cheque was issued by the accused towards the instalments fell due for the period from 03/07/1998 to 03/06/1999 in favour of the complainant. I find no reason to interfere with the concurrent finding of conviction entered into by the courts below against the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act. Presumption under Section 139 of the Negotiable Instruments Act is also in favour of the complainant. The revision petitioner has admitted the issuance of Ext.P1 cheque in favour of the complainant. No evidence has been adduced by the accused to Crl.R.P.No.3153/04 6 rebut that presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act. Considering these aspects, I find no reason to interfere with the concurrent finding of the courts below that the accused/revision petitioner is guilty for the offence under Section 138 of the Negotiable Instruments Act and convicted him thereunder. 6. The learned counsel for the revision petitioner prays that the sentence imposed on the revision petitioner by the courts below may be modified and reduced to imprisonment till rising of court. In a case like this, substantive sentence and deterrent punishment can be avoided. The cheque amount is Rs.80,300/- and the same is dated 15/07/1999. About 12 years time is already elapsed after the issuance of the cheque. The appellate court directed the accused to pay a sum of Rs.80,000/- as compensation to the complainant and in default to undergo simple imprisonment for three months. Considering the elapse of time, I find that compensation amount has to be enhanced by Rs.5,000/- and that the accused is directed to pay a total amount of Rs.85,000/- as compensation to the complainant under Section 357(3) Cr.P.C within a period of three months and in default to Crl.R.P.No.3153/04 7 undergo simple imprisonment for two months. 7. It is submitted by both counsel that the direction to deposit an amount of Rs.15,000/- while suspending the sentence as per order dated 06/12/2004 in Crl.M.A.No.14406/2004 has been complied with by the revision petitioner. If Rs.15,000/- is already in deposit before the trial court, that amount can be given credit to towards the total compensation amount of Rs.85,000/-. If that amount is already in deposit, the complainant/1st respondent is permitted to withdraw that amount on filing proper application. 8. In the result, a) This revision petition is allowed in part. b) The impugned concurrent verdict of guilty and conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act are confirmed. (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C to pay an amount of Rs.85,000/- (Rupees eighty five thousand only) Crl.R.P.No.3153/04 8 as compensation to the complainant/1st respondent within a period of three months and in default to undergo simple imprisonment for a period of two months. The amount, if any, (Rs.15,000/-) which is already in deposit before the trial court can be given credit to towards the total compensation amount and the revision petitioner can pay or deposit the balance amount before the trial court on or before 17/5/2011, failing which the revision petitioner/accused shall undergo simple imprisonment for two months. On payment/deposit of the balance amount, the complainant can withdraw the same on filing proper application. The revision petitioner shall appear and his sureties shall produce him before the learned Magistrate on 18/05/2011 for execution of the sentence. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.3153/04 9 Crl.R.P.No.3153/04 10 Crl.R.P.No.3153/04 11 M.C.HARI RANI, J Crl.R.P.No.3153/04 12 Crl.R.P.No.504 of 2001 ORDER 17th DAY OF JUNE 2001 Crl.R.P.No.3153/04 13