Abdul Azeez v. The State of Kerala and Sulaiman So. Aliyarkunju

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ## _`CRL.REV.PET NO. 3341 OF 2009`_ ``` AGAINST THE JUDGMENT JUDGMENT DATED 13.07.2009 IN CRL.A. 337/2005 OF ADDITIONAL ``` ``` SESSIONS JUDGE, FAST TRACK COURT-I, THIRUVANANTHAPURAM ``` ``` (CC 619/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA) ``` ## _`REVISION PETITIONER/APPELLANT/ACCUSED:`_ ``` ABDUL AZEEZ, S/O ABDUL KHADER, PUTHUVAL PUTHEN VEEDU, R.C. STREET,, KALIYAKKAVILA, K.K. DISTRICT,, TAMIL NADU. BY ADVS. S. Majida S AJIKHAN.M(K/3192/1999) ``` ## _`RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:`_ ``` 1THE STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI -31. 2SULAIMAN SO. ALIYARKUNJU NADUTHOTTAM KIZHEKKEVILA VEEDU,, RAILWAY STATION ROAD, INCHIVILA, PARASSALA.P.O,, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,, MAHEEN. BY ADVS. Swapna Vijayan K.V.ANIL KUMAR(K/131/2000) ``` ## _`OTHER PRESENT:`_ ``` SR. P.P SHRI RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 3341 of 2009 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl. Revision Petition No. 3341 of 2009 ## **========================** ## _**O R D E R**_ **Dated this the 12[th] day of December, 2023** This revision is at the instance of the accused in C.C.No.619 of 1998 on the file of Judicial First Class Magistrate's Court-II, Neyyattinkara, assailing the judgment in Crl.Appeal No.337 of 2005 on the file of Additional Sessions Judge, Fast Track Court-I, Thiruvananthapuram, which upheld his conviction and sentence under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’). 2. C.C. No.619 of 1998 arises out of a complaint filed by the 2[nd] respondent/complainant herein, against the revision petitioner under Section 138 of the NI Act. The case of the 2[nd] respondent was that, the revision petitioner borrowed an ``` Crl.R.P. No. 3341 of 2009 ``` ``` ..3.. ``` amount of Rs.90,000/- from him, and towards discharge of that debt, he issued Ext.P2 cheque dated 03.08.1998. When that cheque was presented for collection before the drawee bank on 04.08.1998, it was dishonoured for the reason 'insufficient funds', as seen from Ext.P3 dishonour memo. He sent Ext.P4 notice on 10.08.1998, and Ext.P5 is its postal receipt. The revision petitioner received that notice as per Ext.P6 acknowledgment card dated 12.08.1998. Though a reply was sent, the amount was not repaid. Hence, the complaint. 3. On appearance of the revision petitioner before the trial court, particulars of offence was read over and explained, to which, he pleaded not guilty and claimed to be tried. Thereupon, PWs.1 and 2 were examined and Exts.P1 to P7 were marked from the side of the 2[nd] respondent/complainant, to prove his case. 4. On closure of complainant’s evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied ``` Crl.R.P. No. 3341 of 2009 ``` ``` ..4.. ``` all the incriminating circumstances brought on record. DWs.1 and 2 were examined and Exts.D1 to D9 were marked from defence side. 5. On an anxious consideration of the rival contentions and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.90,000/-, to the 2[nd] respondent/complainant under Section 357(3) of Cr.P.C, with a default sentence of simple imprisonment for a further period of one month 6. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No. 337 of 2005. The appellate court, on re-appreciation of the facts and evidence, dismissed the appeal finding no reason to interfere with the conviction and sentence, against which he has preferred this revision. 7. Now this Court is called upon to verify the legality, ``` Crl.R.P. No. 3341 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** propriety and correctness of the conviction and sentence imposed on the revision petitioner, by the courts below. 8. Heard learned counsel for the revision petitioner and learned counsel for the 2[nd] respondent/complainant. 9. The fact that Ext.P2 cheque was issued by the revision petitioner to the 2[nd] respondent/complainant is not disputed. But, according to him, he had borrowed only Rs.18,000/- from the 2[nd] respondent/complainant, and he had repaid that amount in instalments. When there occurred some dispute regarding the rate of interest, some mediation talks were there, and he issued a blank signed cheque to the 2[nd] respondent/complainant, and another cheque for Rs.20,000/to DW2 Suresh Kumar. Later, misusing the blank signed cheque, the 2[nd] respondent/complainant filed a false complaint against him. 10. DW2 Suresh Kumar deposed before court that, the cheque given to him by the revision petitioner was towards the ``` Crl.R.P. No. 3341 of 2009 ``` ``` ..6.. ``` debt which was due to him, from the revision petitioner, and it has no connection whatsoever, with the financial transaction between the 2[nd] respondent/complainant and the revision petitioner. Ext.D6 is the notice sent by DW2 Suresh Kumar to the revision petitioner, and Ext.D7 is the reply notice sent by him. Since the revision petitioner failed to show any connection for the cheque given by him to DW2, with the financial transaction between himself and the 2[nd] respondent/complainant, the testimony of DW2 and Exts.D4 to D9 documents are of no use to him. 11. Learned counsel for the revision petitioner would argue that, DW1 is the power of attorney holder of the 2[nd] respondent/complainant and there was no reason for the 2[nd] respondent/complainant for not entering the witness box to give evidence regarding the transaction between himself and the revision petitioner. According to him, Ext.D1 series receipts were issued by the 2[nd] respondent/complainant, in his own handwriting ``` Crl.R.P. No. 3341 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** and since, he was not examined, the revision petitioner could not confront him with those documents. Ext.D1 series documents show some scribbles written on cigarette packets, and it does not contain the signature of the 2[nd] respondent/complainant, or anybody else. When the revision petitioner admits the monetary transaction between himself, and the 2[nd] respondent/complainant, and the 2[nd] respondent comes out with Ext.P2 cheque to show the amount due to him, the burden is upon the revision petitioner to show the actual amount, if it was different from the cheque amount, or to prove repayment of that money, with cogent evidence. The revision petitioner utterly failed to prove his case that, he had borrowed only Rs.18,000/- from the 2[nd] respondent/complainant and he had repaid a total amount of Rs.30,000/- in instalments. He failed to rebut the presumptions available to the 2[nd] respondent/complainant under Sections 118 and 139 of the NI Act. If at all his case, that the cheque issued by him, was a blank signed cheque, is accepted, then also, he ``` Crl.R.P. No. 3341 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** cannot contend that an offence under Section 138 of the NI Act will not be attracted. 12. In _**Bir Singh v. Mukesh Kumar**_ [2019 (1) KHC 774: 2019 (4) SCC 197: 2019 (1) KLT 598], the Apex Court held that, when a signed blank cheque is voluntarily given to a payee, towards some payment, the payee may fill up the amount and other particulars, and that will not invalidate the cheque. The onus to rebut the presumption under S.139 of the NI Act is on the revision petitioner. Even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment, it would attract the presumption under S.139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 13. In the case on hand, the revision petitioner would contend that, the amount borrowed was Rs.18,000/- and he, repaid Rs.30,000/- and when there arose dispute regarding interest, he agreed to pay a further amount of Rs.20,000/-, ``` Crl.R.P. No. 3341 of 2009 ``` ``` ..9.. ``` and towards payment of that amount, he issued a cheque to DW.2 for Rs.20,000/- and another blank cheque to the 2[nd] respondent/complainant. The evidence adduced by DW2, falsifies the case of the revision petitioner. So, if at all the case of the revision petitioner that a blank signed cheque was given to the 2[nd] respondent/complainant is admitted, obviously, it was for the discharge of the amount, which was due to the 2[nd] respondent/complainant. So also, he failed to rebut the presumption available to the 2[nd] respondent/complainant under Section 139 of the NI Act. 14. The trial court as well as the appellate court appreciated the facts and evidence, in its correct perspective, and found the revision petitioner guilty under Section 138 of the NI Act, and he was sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.90,000/- to the 2[nd] respondent/complainant which is equivalent to the cheque amount, with a default sentence of simple imprisonment for one ``` Crl.R.P. No. 3341 of 2009 ``` ``` ..10.. ``` month. 15. Learned counsel for the revision petitioner pleaded for leniency, in the matter of sentence, stating that, the revision petitioner is a senior citizen suffering from various ailments. The transaction in this case pertains to the year 1998. Twenty five years lapsed since then. The revision petitioner was convicted by the trial court on 26.04.2005. The appeal was disposed of on 13.07.2009. The revision is pending before this Court from 2009 onwards, i.e. for the last 15 years. So, it may not be fair from the part of this Court to send the revision petitioner behind the bars, after a long gap of 25 years, since the date of transaction. Moreover, since 2005, he was carrying the trauma of conviction in a criminal case. Considering all these facts, this Court is inclined to modify and reduce the substantive sentence of simple imprisonment for three months into imprisonment till rising of court and to enhance the compensation amount to Rs.1,10,000/-, considering the period of delay involved in making the payment. ``` Crl.R.P. No. 3341 of 2009 ``` **==> picture [37 x 7] intentionally omitted <==** In default of payment of compensation, the revision petitioner has to undergo simple imprisonment for a period of two months. 16. In the result, the revision petition is allowed in part, upholding the conviction of the revision petitioner under Section 138 of the NI Act, and modifying the sentence into imprisonment till rising of court and compensation of Rs.1,10,000/- to the 2[nd] respondent/complainant under Section 357(3) of Cr.P.C. and in default, he has to undergo simple imprisonment for a period of two months. 17. The revision petitioner has to appear before the trial court on or before 01.03.2024 to receive the sentence and to pay the compensation amount to the 2[nd] respondent/complainant, If the 2[nd] respondent/complainant is absent to receive the compensation amount, the revision petitioner has to deposit that amount before the trial court. In default the trial court has to issue arrest warrant against the revision petitioner to execute the sentence. ``` Crl.R.P. No. 3341 of 2009 ``` ``` ..12.. ``` 18. Registry of this Court is directed to transmit the case records forthwith, to the trial court, to execute the sentence, without further delay. The revision petition accordingly stands allowed in part. **Sd/-** **SOPHY THOMAS** **JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```