High Court of KeralaSingle Judge2011-03-01Conviction confirmed; sentence modified to one ...

A. Basheer v. V. Prabhakaran and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 536 of 2011

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V. K. Mohanan
Judgment Date: 2011-03-01
Court Decision / Holding: The High Court disposed of the Criminal Revision Petition by confirming the conviction under Section 138 NI Act and modifying the sentence. The sentence was reduced to one day’s simple imprisonment, to run till the rising of the court, while the fine was enhanced to Rs. 6,75,000/-, to be deposited in the trial court within three months. On failure to deposit, the revision petitioner would undergo simple imprisonment for three months. The accused was directed to appear on 1 June 2011 to receive the modified sentence and deposit the enhanced amount. Upon realisation of the fine, Rs. 6,70,000/- would be paid to the complainant as compensation under Section 357(1)(b) CrPC, and the remaining Rs. 5,000/- deposited with the State Exchequer. Coercive steps were deferred until 1 June 2011. The Court, while confirming the conviction, accepted the Damodar S. Prabhu formula to prioritize compensatory relief, but ensured the complainant’s remedy through enhanced compensation and possible further imprisonment if default occurs.
Final Disposition: Conviction confirmed; sentence modified to one day’s imprisonment; enhanced fine of Rs. 6,75,000; deposit within three months; appearance on 1 June 2011 for modified sentence; coercive steps if default; compensation arranged under Cr.P.C. principles; neutral citation not provided.

Parties to the Case

Appellants / Petitioners

A. Basheer

Respondents

V. Prabhakaran
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Baby Mathew

Counsels for Respondents

• Public Prosecutor, High Court of Kerala, Ernakulam (Smt. Rekha C. Nayar)

Case Synopsis & Summary

This is a Criminal Revision Petition filed by the accused, A. Basheer, challenging his conviction under Section 138 of the Negotiable Instruments Act, 1881, and the sentence imposed by the trial court and confirmed by the appellate court. The complainant alleges that Basheer issued Ext.P1, a cheque dated 15-07-2007 for Rs. 6,00,000 towards discharge of a liability, which was dishonoured for want of funds when presented. The complainant examined Exts.P1 to P8 and relied on oral evidence, while the defence offered no evidence. Both the trial court and the Additional Sessions Judge, Palakkad, held that the cheque was issued to discharge a debt and convicted Basheer, sentencing him to six months’ simple imprisonment and a fine of Rs. 6,00,000 with a default period of three months’ simple imprisonment. Basheer’s appeal was dismissed. During the revision petition, Basheer argued that the complainant failed to prove the transaction and that aspects of the case suggested bribery or coercion, including claims of a job offer to the complainant’s daughter‑in‑law and later coercion by the complainant’s son to obtain the cheque; there was no substantial corroboration of such contentions. The counsel challenged the sufficiency of evidence and the burden on Basheer to rebut the presumption. The High Court, citing the Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., observed that in cheque dishonour cases the compensatory remedy should be prioritized over punitive measures. It disposed of the petition by confirming the conviction, but modifying the sentence to one day’s simple imprisonment (till the rising of the court) and enhancing the fine to Rs. 6,75,000/-, with a three‑month window to deposit. The accused was directed to appear on 1 June 2011 to receive the modified sentence and to deposit the balance of compensation, with coercive steps to be taken if the payment is not made. The court also directed that the balance of the compensation, once realized, be paid to the complainant, under Section 357(1)(b), CrPC. The neutral/citation details are not provided in the document, and the judgment reflects the High Court’s single‑judge bench.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Cr.P.C. Section 357(1)(b)Cr.P.C. Section 357(3)

Legal Doctrines & Maxims

Presumption of liability under the Negotiable Instruments Act and the burden on the accused to rebut the presumption
Damodar S. Prabhu v. Sayed Babalal H. (JT 2010(4) SC 457) — compensatory remedy should be prioritized over punitive measures in cheque dishonour cases

Submissions & Arguments

Contentions of Appellants / Petitioners

The learned counsel for the revision petitioner argued that the complainant has failed to prove the transaction; even if one accepts the complainant’s case, it would amount to bribery by the petitioner to obtain a job for the complainant’s daughter-in-law. The petitioner contended that there is no credible documentary or oral evidence establishing the asserted debt or liability; the evidence on record suggests a lack of consistent proof, and the defence had not been given a fair opportunity to rebut the presumption. The defence argued that the cheque was not issued to discharge any debt; there is no independent corroboration of the complainant’s claim, and the testimony is unreliable. The petitioner also argued that the alleged coercion and forceful obtaining of the cheque by the complainant’s son is unsubstantiated and that mere denial of the transaction does not discharge the burden to rebut the presumption. The counsel urged the Court to re‑weigh the prosecution evidence and set aside the conviction and sentence accordingly.

Contentions of Respondents

The complainant’s case is that the cheque Ext.P1 was issued to discharge a debt arising from a transaction with the petitioner. The trial court and the appellate court found Ext.P1 established the liability and convicted the accused under Section 138 NI Act. The prosecution argued that the defence’s contentions of bribery, coercion, and denial were not supported by credible evidence; the law requires the accused to rebut the presumption of liability, which was not successfully done here. The State contends that the materials on record, including Exts.P1–P8 and the witnesses’ testimony, sufficiently prove a debt and the petitioner’s obligation to pay, and that the appellate courts correctly found guilt. The State also supported the trial and appellate courts’ holding that, while the punitive sentence could be moderated, the substantive conviction should stand, and compensation be ensured in line with Damodar S. Prabhu’s approach to balancing punishment with compensation."},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H.	JT 2010(4) SC 457	Positive	The High Court relied on this Supreme Court decision to emphasize that in cheque dishonour cases, the compensatory remedy should be prioritized over punitive measures, guiding its modification of the sentence and enhanced compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932** **Crl.Rev.Pet.No. 536 of 2011()** **-----------------------------------------** **CRA.236/2009 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ST.2074/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR ....................** ## **REVN. PETITIONER(S): ACCUSED** **-------------------------------------------------** **A.BASHEER, S/O. CHUNDAKATTIL ABDUL KADAR AGED 44 YEARS, CHUNDAKAD, KAVASSERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.BABY MATHEW** ## **RESPONDENT(S): COMPLAINANT** **-------------------------------------------------** **1. V.PRABHAKARAN, S/O. LATE KRISHNAN NAIR, AGED 67 YEARS, THONOOR HOUSE, PARUVASSERY POST, ALATHUR, PALAKKAD DISTRICT. 680 741.** **2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **R2 BY PUBLIC SMT.REKHA C.NAYAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **V.K.MOHANAN, J. --------------------------------------------Crl.R.P.No. 536 of 2011 --------------------------------------------Dated this the 1[st] day of March, 2011** ## **O R D E R** The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the revision petitioner/accused is that towards the discharge of the liability due to the complainant, the accused issued Ext.P1 cheque dated 15.7.2007 for a sum of `.6 lakhs which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the ## **Crl.R.PNO. 536 of 2011** ## **:-2-:** Judicial First Class Magistrate Court, Alathur whereupon S.T.No.2074 of 2007 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P8 and the oral evidence of himself and another as PWs.1 and 2. No evidence either oral or documentary was adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus, accordingly, the court held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple ## **Crl.R.PNO. 536 of 2011** ## **:-3-:** imprisonment for six months and also further directed to pay fine of `.6,00,000/- and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 10.11.2010 in Crl.A.No. 236 of 2009, the court of the Additional Sessions Judge, Fast Track Court No.II, Palakkad dismissed the appeal confirming the conviction and sentence imposed by the trial court. It is the above conviction, sentence and direction to pay the fine, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to prove the transaction and it is also the submission of the learned counsel that if the case of the complainant is ## **Crl.R.PNO. 536 of 2011** **:-4-:** accepted as true, it will amount to bribe. I am unable to sustain the above contention. The specific case of the complainant is that a job was offered to the complainant's daughter-in-law by the revision petitioner, who is the Manager of the H.A.U.P.School, Akkara, Kavasseri, but the revision petitioner miserably failed to give job as offered by him and therefore, when the complainant demanded back the money, the accused issued the cheque in question. The trial court as well as the appellate court have concurrently found that Ext.P1 cheque is issued towards the discharge of the liability that arose out of the transaction between the complainant and the revision petitioner. 6. The learned counsel for the revision petitioner submitted that the job of the daughter-in-law was lost because of the division fall and thereafter, the son of the complainant came to the house of the revision petitioner and had forcefully taken a cheque after obtaining the signature of the revision petitioner under threat and ## **Crl.R.PNO. 536 of 2011** **:-5-:** intimidation and the said cheque is misused for filing the present complaint. Absolutely, no evidence is adduced by the defence to substantiate such contention. Mere denial of the transaction claimed by the complainant is not sufficient to discharge the burden on the accused to rebut the presumption. In the present case, except the mere explanation of counsel for the revision petitioner, there is no evidence or material on record. In the absence of any positive evidence in support of the defence taken by the revision petitioner, I find no reason to interfere with the concurrent findings of the courts below and therefore, the finding of guilt and conviction is confirmed. 7. Learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is exorbitant and unreasonable. It is also the submission of the learned counsel that some breathing time may be granted to the revision petitioner to pay the fine amount. ## **Crl.R.PNO. 536 of 2011** ## **:-6-:** 8. It is relevant to note that the cheque in question is dated 15.7.2007 that too for an amount of `.6,00,000/- and so far, no amount is paid to the complainant in spite of the findings and directions issued by the courts below. The trial court as well as the appellate court found that the said amount is due to the complainant. Even after the appellate court judgment, no amount is given to the complainant. In this juncture, it is also relevant to note that the Honourable Apex Court in the decision reported in **Damodar.S.Prabhu** v. **Sayed Babalal.H.** [JT 2010(4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Having regard to the facts and legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires modification, but at the same time, the interest of the complainant has also to be protected. ## **Crl.R.PNO. 536 of 2011** ## **:-7-:** In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the court below is modified and reduced to one day's simple imprisonment, i.e., till the rising of the court. In addition to the above modified sentence of imprisonment and while confirming the sentence of fine ordered by the court below, the fine amount is enhanced and the revision petitioner is directed to deposit fine of ` **.6,75,000/-** (Rupees Six Lakhs Seventy Five Thousand only) in the trial court within three months from today. In default, the revision petitioner is directed to undergo simple imprisonment for a period of six months. Accordingly, the revision petitioner is directed to appear before the trial court on **1[st] June,2011** to receive the modified sentence of imprisonment and to deposit the above fine amount. In case of any failure on the part of the ## **Crl.R.PNO. 536 of 2011** ## **:-8-:** revision petitioner to appear in the trial court to receive the modified sentence of imprisonment and to deposit the fine amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. On realisation of the fine amount, a sum of ` **.6,70,000/-** shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. and the remaining amount of `.5,000/- shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till **Ist June,2011** . **V.K.Mohanan, Judge.** MBS/ ## **Crl.R.PNO. 536 of 2011** ## **:-9-:** **Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so.** 6. Learned counsel for the revision petitioner ## **Crl.R.PNO. 536 of 2011** ## **:-10-:** submitted that a breathing time may be granted to the revision petitioner to pay the compensation. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement in the amount of compensation. Accordingly, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment now ordered by the lower appellate court is confirmed and the compensation amount is enhanced to Rs.,000/- which shall be paid by the revision petitioner within three months from today and in case of any default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for three months and on realisation of the compensation amount, the entire amount shall be paid to the complainant under Section 357(3) of the ## **Crl.R.PNO. 536 of 2011** **:-11-:** Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on **.11.2010** to receive the sentence and to deposit the compensation amount. In case of any failure on the part of the revision petitioner in appearing before the trial court and making the deposit of compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the petitioner shall be deferred till **.11.2010** . ## **Crl.R.PNO. 536 of 2011** **:-12-:** **V.K.MOHANAN, J.** -------------------------------------------Crl.A.NO. OF 200 -----------------------------------J U D G M E N T ## **Crl.R.PNO. 536 of 2011** ## **:-13-:** DATED: -2-2010 ## **Crl.R.PNO. 536 of 2011** **:-14-:**