IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 Crl.Rev.Pet.No. 577 of 2005(B) ----------------------------- CRA.222/2002 of ADDL. SESSIONS COURT (ADHOC), KALPETTA CC.821/1999 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------- BILLY GRAHAM, S/O.ALBERT, EBNESAR HOUSE, RATTAKUNDU, POOMALA, SULTHAN BATTERY TALUK. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): RESPONDENTS/COMPLAINAT AND STATE ------------------------------------------------------------------- 1. DR.K.M.SUBHASH, S/O.MATHEW, KULANGARA, THATHOLIL VEEDU, SANTHI NAGAR HOUSING COLONY, KOTTAKUNU, SULTHAN BATHERY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,A ERNAKULAM. ADV. SRI.THOMAS ANTONY FOR R1 P.P. SRI. THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/11/2008, ALONG WITH CRRP 3188/05, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 = = = = = = = = = = = = = = = Dated this the 12th day of November, 2008. O R D E R These revisions are preferred against the judgment of the Additional Sessions Judge, Kalpetta in Crl.A.222/02. That appeal was preferred against the conviction and sentence passed in C.C.821/99. The trial court found the accused guilty u/s 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of three months. In appeal the learned Sessions Judge confirmed the finding of guilt but altered the sentence into one of payment of fine of Rs.5,000/-. Aggrieved by the decision the accused has come up in revision as CRRP 577/05 and dissatisfied on the alteration of sentence the complainant has come forward with a revision CRRP 3188/05. 2. Heard the counsel in both the cases. It is the case of the complainant that the accused had borrowed a sum of Rs.2,50,000/- for his business purpose on 1.8.98 agreeing to CR.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 -:2:- repay the same with 15% interest. It is contended that on the expiry of the period prescribed for repayment the accused approached and wanted further time and thereafter issued a cheque with a date of 30.8.99 and endorsed on the back of the promissory note. When the cheque was presented for encashment there was a stop payment memo and so it was dishonoured and thereafter a notice was issued and action was initiated. 3. The contention of the accused in the case appears to be that there had been no transaction as alleged in the complaint but there was a transaction whereby the complainant had executed a document in favour of the accused showing the consideration as three lakhs and for which the accused had given three cheques for Rs.2,50,000/-, Rs.40,000/- and Rs.10,000/-. Now, according to the accused the understanding was when the property is sold an amount of Rs.3 lakhs will be given to the complainant and the balance would be equally shared between them. There was an agreement to sell with a third person for a sum CR.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 -:3:- of Rs.3,50,000/- of which Rs.25,000/- was given as advance. But that person did not comply with the terms of agreement. On receipt of advance of Rs.25,000/- the accused permitted the complainant to encash the cheque of Rs.10,000/- and therefore it is contended that the transaction in dispute in the case is not as alleged and therefore no action can be initiated u/s 138 of the N.I. Act. 4. In the Court below Exts.P1 to P17 and D1 to D14 were marked. The execution of the promissory note and endorsement on the back of the promissory note are not disputed or challenged. There is a registered document transferring the right of the plaintiff in favour of the accused. It is the document D6. There was a suit which is referred to by the learned Magistrate as O.S.108/99. The copy of the plaint is marked as D2. The contention in Ext.P15 written statement is to the effect that the accused is claiming absolute title over the property. It has also come in evidence that what is stated in Ext.P15 is true according to him. It is also stated therein that he is in possession of the property CR.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 -:4:- and is paying a tax. Ext.P15 is filed on 27.2.00, i.e. after he had appeared in the present case. In spite of the same he claims absolute title over the property. So the attempted case of the accused to make believe the trial court that there was a transaction with respect to the property and it was in pursuance of that transaction cheques were happened to be issued will much depend upon the credibility of such a transaction as spoken to by the accused. The very factum of claiming absolute right over the property itself will rudimentally cut the correctness of the contention raised by the accused. The complainant has got a definite case that the present cheque transaction is not in connection with any immovable property and therefore on evaluating the entire materials the trial court found that the case spoken to by PW1 is acceptable and that the defence version is not sufficient to dislodge the credibility of the evidence of PW1 and the documents produced by him. CR.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 -:5:- 5. It is a well settled principle that in a case u/s 138 of the N.I. Act when the defence tenders evidence which is not mandatory under law, then the Court before which it is tendered is entitled to consider it and weigh it so as to arrive at a correct decision on the intrinsic reliability or the inherent probability of the evidence available in the case. This is what has been precisely done by the trial court to arrive at a decision. 6. Unfortunately, the appellate court to some extend and ultimately enters into a finding that the accused had committed the offence u/s 138 of the N.I. Act. But it has some suspicion in mind regarding the correction in the promissory note etc. which is not a case even for the accused. The accused has admitted the execution of the promissory note as well as endorsement on the back of the promissory note. It was beyond the scope of the sessions Court to have gone into that plea which was not really a subject matter that arose for consideration in the case at all. The appellate court felt that if Rs.2,50,000/- is paid and a CR.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 -:6:- cheque is issued to be encashed after one year normally interest also should have been added up. It is all a contract and agreement between the parties and the Court is not expected to read in between the lines when the parties did not have such a case. Therefore I disagree with such observations and I also find that the appellate court has fell into error by altering the sentence of imprisonment into a mere fine of Rs.5,000/-. It gives a reason that most probably the trial court has not granted compensation because it was not fully convinced about the case. I disagree with the same and I find crystal clear finding of the trial Court and it did not have any doubt in its mind and it was thereafter it imposed an imprisonment of three months in the case. Now, from the materials available I have no hesitation to hold that the accused is to be found guilty u/s 138 of the N.I. Act. as rightly found by the Court below. 7. Now regarding the sentence. It is a well settled principle, in matters the Court should not resort to give only flee bite of sentence. The very intention of S.138 is to give CR.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 -:7:- honour to the cheque transaction. It will be pathetic if the Courts start not even awarding proper punishment or at least fine which at least to some extend redress the grievance of the person who had approached the Court. Therefore I feel this is a fit case where the sentence passed by the appellate court requires modification. There need not be a sentence of imprisonment as a prime punishment but it can be given as a punishment for which fine is not given but the fine amount has to be enhanced and the present amendment Act gives power to levy a fine of twice the amount of the cheque. Therefore the Criminal Revision is disposed of as follows: (1) The CR.R.P.577/05 is dismissed. (2) In CR.R.P.3188/05, the conviction u/s 138 of the N.I. Act is confirmed and the accused in the case is directed to pay a fine of Rs.2,50,000/- and on recovery of the said amount the same shall be disbursed to the complainant and in default of payment of fine the revision petitioner has to undergo imprisonment for a period of two months. CR.R.P. NOs. 577 OF 2005 & Crl.R.P.3188 OF 2005 -:8:- (3) The accused shall pay the fine on or before 12.2.09 failing which the trial court shall execute the sentence. (4) If any amount has been deposited that can be treated as part of fine and let it be disbursed to the complainant on proper application. M.N. KRISHNAN, JUDGE. ul/-