IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 CRL.REV.PET.NO. 1684 OF 2009() ----------------------------------------------- CRA.453/2008 OF ADDL.SESSIONS COURT (ADHOC), KOTTAYAM ST.383/2007 OF JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------ K.K.SWAMINATHAN, MANAGING DIRECTOR, SHINE'S TOURIST HOTEL, PANDALAM. BY ADV. SRI.M.V.THAMBAN, R. REJI & BIPIN B. RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BIJU CHACKO, MUNDAKATHIL HOUSE, ITHITHANAM P.O., CHENGANACHERRY. BY PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1684 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of May, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to respondent No.2. 2. Case of respondent No.2 is that petitioner borrowed Rs.1,00,000/- from him and issued cheque dated 12.11.004 for the discharge of that liability. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 to P4. Respondent No.2 issued notice to the petitioner on 28.2.2005 intimating dishonour and demanding payment. Issue and service of notice are proved by Exts.P6 and P7. Exhibit P8 is the reply issued by the petitioner. Respondent No.2 gave evidence as P.W.1 and testified to his case. Contention raised by the petitioner when questioned under Section 313 of the Code of Criminal Procedure is that he has been conducting a hotel at Pandalam and used to purchase provision articles from M/s.S.K. Traders at Changanacherry. He also had financial transaction with its owner to whom Ext.P1, cheque was given as security and that cheque has been misused. Courts below did not accept that contention of the petitioner, found in favour of due execution of the CRL. R.P. No.1684 of 2009 -: 2 :- cheque and convicted the petitioner. It is contended by learned counsel that due execution of cheque is not proved, at any rate the transaction is hit by Section 269SS of the Income Tax Act (for short, “the Act”) and hence the amount claimed by respondent No.2 is not legally recoverable. 3. So far as contention regarding execution of the cheque is concerned, in Ext.P8, reply, petitioner has admitted that amount is due to respondent No.2. Respondent No.2 has given evidence regarding the transaction. Nothing is brought out to disbelieve that evidence. There is no material to hold that petitioner had given Ext.P1 to the owner of M/s.S.K. Traders. Petitioner did not adduce any evidence in that line. Therefore, contention raised in the courts below that petitioner's transaction was with the owner of M/s.S.K. Traders cannot stand. Thus due execution of cheque for the discharge of the liability is proved. 4. Now I shall refer to the contention based on Sec.269SS of the Act. The provision says that except in the manner provided therein, no person shall after 30.6.1984 take or accept from any other person any loan or deposit exceeding Rs.20,000/-. According to the learned counsel, respondent No.2 paid the sum of Rs.1,00,000/- to the petitioner not in the manner stated in the said provision. Hence it is an CRL. R.P. No.1684 of 2009 -: 3 :- illegal transaction and not legally recoverable. I am unable to accept the contention of the petitioner for the reason that liability in favour of respondent No.2 is legally enforceable. Legality of enforceability of the debt or liability must pertain to the nature of the debt or liability, as the case may be and not as to the mode in which the amount was advanced. There is no contention that amount was advanced to the petitioner for any purpose opposed to public policy or prohibited under any law for the time being in force so as to come under Sec.23 of the Contract Act. If respondent No.2 by paying an amount above Rs.2,00,000/- in a manner prohibited under Sec.269SS of the Act, illegality is not attached to the amount paid but to the manner of its payment which does not make the amount not legally recoverable. The amount remains legally recoverable. If respondent No.2 has violated the provisions of the Act, that is a different matter for which he may be liable otherwise. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and payment of fine of Rs.1,00,000/- with default sentence. In appeal the substantive sentence was set aside but the sentence of fine was confirmed. Having regard to the nature of the offence and object of legislation, I find no reason to interfere with the sentence as modified by the CRL. R.P. No.1684 of 2009 -: 4 :- appellate court. 6. At this stage counsel for petitioner requested five months' time to deposit the fine. Considering the amount involved and the difficulties expressed by learned counsel on behalf of the petitioner, three months' time from this day is granted to deposit the fine in the trial court. Crl. Revision Petition is dismissed granting three months' time from today to the petitioner to deposit the fine in the trial court. THOMAS P.JOSEPH, JUDGE. vsv