A. Abdul Majeed Rawther @ Palamattam Majeed v. Geetha Ramachandran and The State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936 Crl.Rev.Pet.No. 3137 of 2003 (C) --------------------------------- (AGAINST THE JUDGMENT IN CRL.A.NO. 78/2001 of III ADDL. SESSIONS COURT, THRISSUR DATED 31-05-2003 AGAINST THE JUDGMENT IN S.T. NO. 319/1997 of J.M.F.C.-III,THRISSUR DATED 18-01-2001) ## REVISION PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------------------------------------- A.ABDUL MAJEED RAWTHER @ PALAMATTAM MAJEED, S/O. HASSAINAR RAWTHAR, AGED 62 YEARS, PROPRIETOR, M/S. PALAMATTAM FILMS, AMBADY BUILDING, M.G.ROAD, ERNAKULAM. BY ADV. SRI.B.N.SHIVA SHANKAR RESPONDENT(S)/COMPLAINANT: ---------------------------------------------- 1. MRS. GEETHA RAMACHANDRAN, LESSEE, M/S. KRISHNA THEATRE, GURUVARYOOR, THROUGH POWER OF ATTORNEY HOLDER SRI. V. PADMANABHAN, “KRISHNA APARTMENTS”, PERINGAVU, THRISSUR. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.V.V.ASOKAN R2, BY PUBLIC PROSECUTOR, SRI.DHANESH MATHEW MANJOORAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.T.O. ## **K.HARILAL, J.** ======================== ## **CRL.R.P. No. 3137 of 2003** -------------------------------------------Dated this the 2[nd] day of December, 2014 ## **ORDER** The revision petitioner herein is the accused in S.T. No.319/97 on the files of the Judicial First Class Magistrate Court-III, Thrissur, as well as appellant in Criminal Appeal No.78/2001 on the files of III Additional Sessions Court, Thrissur. He was prosecuted for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') on a complaint filed by the respondent herein. After trial the learned Magistrate had found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo Simple Imprisonment for 3 months and to pay a fine of Rs.50,000/- and in default to undergo Simple Imprisonment for 3 months. Aggrieved by the conviction and sentence, though he had preferred the above criminal appeal, after re-appreciating the entire evidence, the learned Sessions Judge also concurred with the findings of the trial court and confirmed the conviction entered, but modified the sentence. The fine amount was converted to compensation payable to Crl.R.P No.3137 of 2003 2 the respondent and enhanced to Rs.60,000/-. The legality and propriety of the concurrent findings of conviction and sentence are under challenge in this revision petition. 2. It is the case of the respondent that the revision petitioner was known to him for so many years and had business relationship also. A sum of Rs.50,000/- was due to the respondent from the revision petitioner, and in discharge of that debt, the revision petitioner issued cheque dated 02/11/1996 for Rs.50,000/- to the respondent. When he presented the cheque for encashment, the same was dishonoured and returned for want of sufficient funds in the account. Though the respondent had caused to issue a lawyer's notice the revision petitioner did not pay the cheque amount but sent a reply stating false statements. 3. In defence, the revision petitioner admitted the issuance of the cheque as well as the signature on the cheque. But he contended that it was issued as a security and the same was only a blank cheque which bears the signature only. The cheque amount and endorsements were made by somebody else. So, Ext.P2 cheque was not drawn and issued for discharging of a legally enforceable debt. Crl.R.P No.3137 of 2003 3 4. In order to discharge the initial burden of proving the execution and issuance of the cheque, complainant/respondent was examined as PW1 and Exts. P1 to P8 were marked. The power of attorney was marked as Ext.P1 and Ext.P3 to Ext. P5 are documents evidencing the dishonour of the cheque due to insufficiency of funds, in the account of the revision petitioner. After evaluating the oral as well as documentary evidence adduced by the respondent, the learned Magistrate observed that the respondent has successfully discharged his initial burden of proving execution and issuance of the cheque, and thereby the respondent is entitled to get benefits under Section 139 and 118 (a) of the N.I. Act. 5. No evidence had been adduced by the revision petitioner herein in defence. But, when he was questioned under Section 313 of the Cr.P.C, he contended that though Ext.P2 cheque was his own cheque and it bears his signature, but it was a blank signed cheque issued as a security only. The cheque amount and endorsements were made by somebody else. In ' _**Moydeen Vs. Johny'** (2006 (3) KLT SN 62)_ this court held that there is no statutory requirement insisting that the drawer himself should fill up the cheque and Crl.R.P No.3137 of 2003 4 by transferring blank signed cheque to another person, he conveys an implied authority to fill up the cheque by anybody else. In _**'Mohanachandran Nair v. Cheriyan'**_ (2012 (4) KLT SN 35), this court held that the cheque which was issued as a security also will come under the offence punishable under Section 138 of the N.I. Act. Therefore, I find that the contention raised by the revision petitioner in defence is unsustainable under law. That apart, going by the impugned judgment passed by the trial court, it is seen that the accused had a case that he had transaction with the respondent and that transaction was already settled and an amount of Rs.5,000/- was pending to the respondent. 6. In ' _**Devan v. Krishnamohan'**_ (2010 (2) KLT 397), this court held that once the signature and handing over the cheque is statutorily proved, the presumption comes into play and the complainant is entitled to get presumption under section 139 and 118(a) of the N.I. Act. In ' _**Rangappa V. Mohanan'**_ (2010 AIR SC 2946) the Apex Court held that the presumption under Section 139 includes the existence of a legally enforceable debt for liability also. Crl.R.P No.3137 of 2003 5 7. In the light of the legal position well settled by the Apex Court and referred above, I find that there is no illegality or impropriety in the concurrent findings of the court below. I do not find any kind of perversity in the appreciation of evidence which culminated to the finding that the revision petitioner is guilty of the offence under Section 138 of the N.I. Act. 8. Coming to sentence, in this revision petition, the revision petitioner contended that the sentence imposed on the revision petitioner is excessive and disproportionate with the nature and gravity of the offence. 9. _The Supreme Court, in the decision in_ _**'Kaushalya Devi Massand v. Roopkishore** (AIR 2011 SC 2566), held that the offence under Section 138 of the N.I.Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in '_ _**Vijayan v** ._ _**Baby'** (2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under_ Crl.R.P No.3137 of 2003 6 _Section 138 of the N.I.Act, the compensatory aspect of remedy should be given much priority over punitive aspect._ 10 _._ In view of the legal position settled by the Apex Court as regards the sentence that can be imposed for the offence punishable under Section 138 of the N.I. Act, I am of the opinion that sentence imposed on the revision petitioner is a little excessive and disproportionate with the nature and gravity of the offence. It is also found that the lower appellate court converted the fine amount to compensation and enhanced from Rs.50,000/- to Rs.60,000/-. The conversion of fine to compensation is justified. But, the enhancement of the quantum of compensation is not justifiable in an appeal filed by the accused. Therefore I set aside the substantial sentence of imprisonment for 3 months imposed on the revision petitioner and also the enhancement made in the quantum of compensation. Hence the sentence will stand reduced and modified as given below. - (i) The revision petitioner shall undergo simple imprisonment for one day till rising of the court. - (ii) He shall pay a compensation of Rs.50,000/- (Rupees Fifty Thousand only) within one month from today. Crl.R.P No.3137 of 2003 7 If he has deposited the entire cheque amount in compliance with the order of this court dated 18[th] June, 2004, the same shall be adjusted towards the compensation and in that case the respondent is entitled to withdraw the said amount from the trial court. - (iii) He shall appear before the trial court to suffer the substantive sentence of simple imprisonment for one day till rising of the court as ordered above on or before 5[th] January, 2015 with sufficient proof to show the payment of compensation, if he has not deposited the cheque amount in compliance with the order dated 18/06/2014 of this court. - (iv) In default, the revision petitioner shall undergo simple imprisonment for a period of 2 months. Sd/- **K.HARILAL, JUDGE.** //true copy// P.S. To Judge St/-