IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.Rev.Pet.No. 319 of 2001() ----------------------------- CRA.125/1997 of SESSIONS COURT, KOZHIKOE CC.911/1994 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): ------------------------------------ RAMESH BABU, PROP. LAKSHMI ELECTRONICS, VADAKARA. BY ADV. SRI.SREEPRAKASH K.NAIR RESPONDENT(S): ---------------------------- 1. K. SURENDRA HEGDE, ASST. MANAGER, K.S.E.D.C. LTD., CHEROOTY ROAD, CALICUT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY P.P. SRI.C.M. KAMAPPU. ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1 ADV. SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1366 OF 2001 IN CRL.R.P.NO.319 OF 2001: CLOSED 10/6/2009 SD/- R. BASANT, JUDGE. //true copy// R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 319 of 2001 ------------------------------------------------- Dated this the 10th day of June, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.67,152.50. The cheque was allegedly issued to the complainant by the accused for the discharge of a legally enforceable debt/liability. The cheque, when presented, was dishonoured on the ground of insufficiency of funds. Notice of demand was duly issued. The same was received. It did not evoke any positive response. It succeeded only in evoking Ext.P5 reply denying the liability. The complainant, after observing the statutory time table scrupulously, came to court with a complaint. Cognizance was taken. The accused Crl.R.P. No. 319 of 2001 -: 2 :- denied the offence alleged against him. Thereupon, the prosecution examined P.Ws.1 and 2 and proved Exts.P1 to P9. The accused, in the course of cross-examination and when examined under Sec.313 Cr.P.C. as also in Ext.P5 reply, stuck to a fairly defenite stand. He took the stand that the cheque was given earlier. The amount covered by the cheque was paid on 27/1/94 – the same date on which the cheque was presented for encashment. There was an omission on his part to take back the cheque. The cheque was misutilised and a false claim is now being made by the complainant. No defence witnesses were examined. Ext.D1 - a receipt issued in 1990 when a cheque was handed over to the complainant, was marked. The accused also marked Ext.D2 cash receipt which shows that the very same cheque was received by the complainant and the said receipt Ext.D2 was issued subject to realisation of the cheque. 2. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Sec.138 of the N.I. Act. Accordingly, the courts below proceeded to pass the impugned concurrent judgments. 3. The revision petitioner now faces a sentence of imprisonment for a period of six months and to pay a fine of Crl.R.P. No. 319 of 2001 -: 3 :- Rs.5,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for a further period of one month. 4. Before me, the learned counsel for the petitioner/accused and the respondent/complainant have advanced their arguments. The learned counsel for the petitioner/accused assails the impugned concurrent judgments on the following grounds: (i) The courts below erred grossly in coming to the conclusion that Ext.D2 receipt does not evidence discharge of the liability under the cheque. (ii) The sentence imposed is, at any rate, excessive. 5. Ground No.(i): That there was an outstanding liability on the date of presentation of the cheque i.e., 27/1/94 is not practically disputed. While the complainant alleges that Ext.P2 cheque was issued for the due discharge of a liability and Ext.D2 receipt was issued subject to realisation of the said cheque, the accused contends that Ext.D2 was issued when cash and not cheque was handed over to the complainant. 6. Both the courts have come to the conclusion that Ext.D2 receipt does not evidence receipt of any cash; but only evidences receipt of Ext.P2 cheque by the complainant. According to the Crl.R.P. No. 319 of 2001 -: 4 :- complainant, when the cheque is received, Ext.D2 receipt was issued and the cheque was sent to the bank on the same day for collection. Ext.D2 does not evidence any cash payment; it evidences the payment made by cheque under Ext.P1. 7. The factual dispute falls in a short matrix. Does Ext.D2 evidence payment of cash as contended by the learned counsel for the petitioner or does it evidence payment of the amount by Ext.P2 cheque? This is the crucial question. 8. A careful reading of Ext.D2 knocks the bottom out of the theory advanced by the accused. It is no where mentioned that the amount was received by cash even though Ext.D2 receipt bears the heading “cash receipt”. The accused is obviously attempting to take advantage of the heading in Ext.D2 which describes itself to be a cash receipt. But the body of the receipt as also the printed endorsement thereon clearly shows that even when the cheques or drafts are issued a cash receipt like Ext.D2 is issued by the complainant. It is made clear in the receipt that the receipt is issued to acknowledge Ext.P2 cheque. No where it is mentioned that the amount is received by cash. The endorsement on the foot of the receipt shows that “the receipt issued subject to realisation of cheque/draft”. The version of the complainant is probablised and no semblance of a reasonable Crl.R.P. No. 319 of 2001 -: 5 :- doubt is left in the mind of the court on the nature of the transaction. 9. An amount of Rs.67,152.50 was in arrears on 27/1/94. To discharge this liability, Ext.P2 cheque was issued and Ext.D2 receipt was issued by the complainant. In Ext.D2 receipt, it is made clear that the receipt is being issued to acknowledge the payment by cheque No.935020 dated 27/11/93. The endorsement on the foot of it shows that the receipt is issued “subject to realisation of the cheque.” In this context we have the evidence of P.Ws.1 and 2. The evidence of P.W.2 shows that the same remains unchallenged. It is he who had issued Ext.P2. According to him, Ext.D2 is issued to acknowledge receipt of Ext.P2 cheque on the date when it was sent to the bank for collection. According to him, it has carefully been shown in Ext.D2 that the receipt was issued subject to realisation of the cheque. 10. No semblance of a doubt enters in my mind about the nature of the transaction and the circumstances under which the cheque Ext.P2 and receipt Ext.D2 were issued. The challenge on this ground must hence fail. 11. Coming to the question of sentence, I have already adverted to the principles governing imposition of sentence in a Crl.R.P. No. 319 of 2001 -: 6 :- prosecution under Section 138 of the N.I Act in the decision reported in Anilkumar v. Shammi [2002(3) KLT 852]. The cheque is for an amount of Rs.67,152.50. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight three rounds of legal battle by now and to wait from 1994 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 12. In the result: (a) This Crl.R.P is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I Act are upheld; (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the court below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.90,000/- as compensation under Section 357(3) Cr.P.C and in default to Crl.R.P. No. 319 of 2001 -: 7 :- undergo simple imprisonment for a period of three months. If the amount is not paid directly to the complainant and is deposited or recovered through court, the same shall be released to the complainant entirely. 13. The petitioner shall have time till 25/7/09 to make the payment and avoid the default sentence. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before that date for execution of the modified sentence hereby imposed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No. 319 of 2001 -: 8 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 319 of 2001 ------------------------------------------------- Dated this the 10th day of June, 2009 ORDER