Abdul Khader @ Bava v. M. P. Ahmed and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 **Crl.Rev.Pet.No. 1469 of 2001()** **------------------------------** CRA.333/1998 of SESSIONS COURT, KOZHIKOE CC.74/1995 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- ABDUL KHADER @ BAVA, S/O.AVARANKOYA HAJI, KHALIPHANTAKATH HOUSE, NALLALAM AMSOM DESOM, P.O.NALLALAM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. M.P.AHAMMED, S/O.ASSANKUTTY, MANELPEETIKAYIL HOUSE, THURAYOOR AMSOM DESOM, KOYILANDY TALUK. 2. STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.ANIL XAVIER FOR R1 SRI.ZAKEER HUSSAIN FOR R1 PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008, ALONG WITH CRRP NO. 889 OF 2002 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **THOMAS P. JOSEPH, J. -------------------------------------Crl.R.P.No.1469 of 2001 & Crl.R.P.No.889 of 2002 -------------------------------------Dated this the 11[th] day of December, 2008.** **ORDER** Heard both sides. 2. Parties are referred as complainant and accused as in the trial court for convenience. 3. These revisions arise from conviction of the accused for offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act') and sentence imposed, by learned Judicial First Class Magistrate, Payyoli as per judgment dated 16.9.1998. Accused was sentenced to undergo simple imprisonment till rising of court and to pay fine of Rs.6,60,000/-. Conviction was confirmed by the learned Sessions Judge but sentence was modified as fine of Rs.5,000/- with default sentence. Accused, aggrieved by the conviction and sentence as modified by the learned Sessions Judge filed Cr.R.P.No.1469 of 2001 while complainant, aggrieved by what he called the insufficiency of sentence has filed Cr.R.P.No.889 of 2002. **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** 2 4. Following points arise for decision:- I. Whether accused executed Ext.P1, cheque dated 14.8.1994 for discharge of legally enforceable debt/liability as claimed by the complainant? II. Whether challenge against the sentence as modified by the learned Sessions Judge at the instance of complainant is sustainable? III. Whether sentence as modified by learned Sessions Judge is legal and proper? 5. Perused records. ## 6. **Point No.I.** Ext.P1 is the cheque dated 14.8.1994 which is called in question in these proceedings. According to the complainant, accused agreed to supply timber logs worth Rs.6,50,000/- within one month as per agreement dated 13.7.1994 and received Rs.6,50,000/- from him. At the time of agreement, accused executed Ext.P1 (cheque dated 14.8.1994 for Rs.6,50,000/-) in his **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** 3 favour with liberty to him to present the cheque and encash the same in case timber as agreeed was not delivered within the stipulated time. Complainant further said that accused failed to supply timber as per agreement within the time stipulated, he has been meeting the accused in an attempt to mediate the dispute, accused somehow evaded and ultimately he was constrained to present the cheque on 13.2.1995 but it was dishonoured for insufficiency of funds. Notice was issued and served on the accused intimating dishonour and demanding payment of the amount. That, cheque was dishonoured for insufficiency of funds is not very much in dispute before me and proved by Ext.P2 and evidence of PW1, manager of drawee bank. Complainant gave evidence as PW2 and testified to his case. He was recalled for further examination to prove that Ext.P8, agreement is said to be executed by the accused in his favour on 13.7.1994. He also examined PW3 who claimed to be a witness in Ext.P8. PW3 supported the complainant. Case pleaded by the accused is that he had entered into Ext.D1, agreement dated 15.4.1994 with the complainant for supply of timber worth Rs.5 lakhs, received Rs.1.5 lakhs as advance at the time of agreement and thereafter the balance amount also was received. Following that agreement, he gave Ext.D2, power of attorney to the complainant to collect timber and accordingly, complainant collected timber and returned Exts.D1 and D2 to the accused. It is his further case that at the time of **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** 4 execution of Ext.D1 agreement, complainant had taken signed blank cheques and signed stamp papers from him as security, same have been misused and Exts.P1 and P8 have been fraudulently created. Accused gave evidence as DW1 and testified in that line. It is contended by learned counsel for accused that due execution of the cheque is not proved, there is no reference in the complaint or notice about Ext.P8, PW2 (complainant) had even asserted that there is no such written agreement regarding the alleged transaction on 13.7.1994 in his cross-examination but later, Ext.P8 was created making use of signed stamp papers given at the time of execution of Ext.D1. Counsel further contends that going through the averments in the complaint and evidence adduced, it is quite improbable that the accused executed any such cheque in favour of the complainant. Counsel also raised a contention based on Ext.P8, agreement that in clause No.4 what is permitted by the accused is only to take action based on the cheque but not to present the same for encashment. Counsel for complainant while supporting the concurrent findings entered by the courts below stated that version of accused that Ext.P8 is fabricated cannot be accepted even on its face value. 5 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** 7. When due execution of the cheque is disputed, payee or the holder in due course has to establish it by acceptable evidence. A mere admission or proof of signature in the cheque does not amount to admission or proof of its due execution. But, it is also to be born in mind that obligation of the complainant is not to prove conclusively that the cheque was executed in his favour. What is required is proof beyond reasonable doubt. In the case on hand, it is not disputed that Ext.P1 drawn on the account maintained by the accused bears his signature. . Then the next question is whether evidence of the complainant regarding its execution can be accepted. 8. Learned counsel took me through the evidence of PW2 (complainant) and DW1, accused. It is true that when PW2 was cross-examined on 18.2.1998 he initially stated that there is no written agreement between him and the accused regarding the alleged transaction but in further crossexamination he stated that apart from the transaction on 13.7.1994 there were other transactions also including Ext.D1 and that as per written agreement he had 2-3 transactions with the accused. He stated that in respect of the transaction of Rs.6,50,000/- (ie., alleged transaction on 13.7.1994) there was an agreement executed between him and the accused, signed by witnesses also and that agreement has been given to his counsel (in the trial court). It is 6 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** thereafter that PW2 was recalled, further examined and Ext.P8 was proved. PW3 stated that he witnessed the execution of Ext.P8. Along with that, I will consider the evidence of the accused as DW1. He denied execution of Ext.D1. 9. According to the accused, signed blank stamp paper taken from him at the time of Ext.D1 transaction on 15.4.1994 was misused and Ext.P8 was fabricated. That contention of the accused cannot prima facie stand since Ext.D1 is dated 15.4.1994 and the stamp paper on which Ext.P8 (agreement) is written is seen purchased on 13.7.1994. Obviously, there was no possibility of complainant taking signed stamp paper purchased on 13.7.1994 when he entered into Ext.D1 agreement with the accused on 15.4.1994. Certainly that is an important circumstance in considering whether version of the accused concerning execution of Ext.P8 is true or not. In fact, accused also did not dispute that signature seen on the stamp paper in Ext.P8 agreement is his own. He denied only signature in the additional sheet attached to Ext.P8. It is difficult to think that accused who admittedly was having transactions with the complainant involving lakhs of rupees would deliver signed blank stamp paper as contended by him. When examined as DW1, accused claimed that he does not know whether the stamp paper in Ext.P8 which contained his own signature was given by him at the time of Ext.D1 transaction on 15.4.1994. 7 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** 10. So far as the execution of Ext.P1, cheque is concerned, reference is made to that in Ext.P8 also. According to the accused, he had given signed blank cheque (Ext.P1) to the complainant at the time of Ext.D1 transaction. If that be so when he got back Exts.D1 and D2, he should and would have got back the signed blank cheque (Ext.P1) as well. I stated that the contention of the accused that Ext.P8 is fraudulently created cannot be accepted. That, Ext.P8 refers to Ext.P1, cheque is an added circumstance in favour of the complainant. 11. It is true that in the complaint or notice following dishonour, there is no reference to Ext.P8 agreement. In fact, complainant when examined as PW2 admitted that in the connected civil case also there is no reference to Ext.P8 agreement. Copy of that plaint has not been produced in this case. It is not clear what is the cause of action alleged in the plaint. So far as non-mention of Ext.P8 in the complaint and statutory notice preceding it is concerned, I must bear in mind that in a prosecution under Section 138 of the Act what is required to be pleaded and proved by the complainant is only that accused executed the cheque in his favour for the discharge of legally enforceable debt/liability. Therefore, absence of an averment in the complaint or notice regarding the agreement by itself, is not fatal or sufficient to discard Ext.P8 in the facts and circumstances of this case. 8 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** 12. Next contention is that Ext.P8 does not permit the complainant to present the cheque for encashment. According to learned counsel for accused, agreement only permitted complainant to take action based on the cheque in case of non-performance of contract by the accused. It is difficult to give a limited interpretation to the wording in clause (iv) of Ext.P8 that what is meant by 'taking action' on the cheque is something other than presenting it for encashment. Even otherwise, right of the payee or holder in due course to present the cheque is something granted under the Act and not under agreement between the parties and therefore also that contention cannot be sustained. 13. It is contended by the accused that there was no such transaction between him and complainant on 13.7.1994. There is no acceptable evidence, not even to probabilise that accused gave signed blank cheque or signed stamp paper in connection with Ext.D1 agreement. It is pertinent to note that inspite of being intimated about dishonour of the cheque and demanding payment of Rs.6.5 lakhs, accused did not respond to it. That was the earliest opportunity for the accused to deny execution of cheque dated 14.8.1994 and contend that a signed blank cheque and stamp paper were taken from him at the time of Ext.D1 transaction. That, he did not do. According to learned counsel, accused has an explanation that he had misplaced the notice. Assuming so, 9 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** that did not prevent the accused from intimating complainant that he had not issued cheque dated 14.8.1994, nor had he any transaction with complainant on 13.7.1994. In the facts, circumstances and evidence, I am unable to accept the contention of accused regarding execution of Exts.P1 and P8. Due execution of Exts.P1 and P8 is proved. 14. It is then contended by learned counsel that at any rate, presumption under Section 139 of the Act does not extend to the legality of enforceability of the debt or other liability and that presumption has been rebutted by the accused. I found in favour of due execution of the cheque. It is true that there is no presumption regarding legality of enforceability of the debt or other liability but complainant has given evidence regarding the transaction on 13.7.1994 which culminated in the execution of Ext.P1, cheque dated 14.8.1994. On going through the evidence let in by both sides, I find no reason to interfere with the concurrent finding of fact entered by the courts below regarding due execution of the cheque, its dishonour for insufficiency of funds and nonpayment of amount within statutory period inspite of dishonour intimation and demand. ## 15. **Point Nos.II and III.** Now I shall refer to the challenge made by complainant to the sentence as modified by learned Sessions Judge, to fine of Rs.5,000/-. Learned counsel 10 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** for accused contends that a revision at the instance of complainant challenging sentence is not maintainable. According to the learned counsel, going by Section 401(1) of the Code of Criminal Procedure (for short ‘the Code’), revisional court can exercise only power vested with an appellate court under Section 386 of the Code. Learned counsel took me through Section 386(c) of the Code which deals with appeal for enhancement of sentence. According to the learned counsel, appellate court can exercise that power only when appeal against sentence is preferred by the State under Section 377 of the Code and in support, placed reliance on the decision in **Asst. Collector of Central Excise, Madras v. Krishnamoorthy and others [(1997) 3 SCC 100]** . According to the learned counsel since power is conferred on the State to challenge sufficiency of sentence under the said provision, there is a bar under Section 401(4) of the Code against entertaining a revision against sufficiency of sentence. 16. I am afraid, contention of the learned counsel cannot stand. That is because what Sections 377 and 386 of the Code relied on by the counsel state is concerning the appellate court interfering with sentence awarded on an appeal preferred by the State. Those provisions do not confer right on a complainant in a private complaint or a defacto complainant in a police case to challenge legality or regularity of the sentence by way of appeal. As such, bar under Section 401(4) of the Code does not apply. Decision relied on by learned 11 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** counsel considered the question whether an appeal preferred by the complainant (Asst. Collector of Central Excise) against legality of sentence through standing counsel for Central Government could be equated as an appeal preferred by Central Government itself. Honourable Supreme Court answered the issue in the negative. That is not the situation in this case. It has been confirmed by various authoritative judicial pronouncements that even when State Government has not preferred an appeal against acquittal, it is open to the defacto complainant to challenge acquittal in revision invoking supervisory jurisdiction of Sessions Court or High Court under Sections 397 and 401 of the Code. Sections 397 and 401 of the Code confer supervisory power on the Sessions Court and High Court to correct any illegality, irregularity or impropriety in the judgment or proceeding of the subordinate criminal courts. If sentence awarded by the subordinate criminal court is irregular, illegal or improper there is no reason why the revisional court should not exercise its supervisory power against such irregularity, illegality or impropriety at the instance of complainant in a private complaint or defacto complainant in a police case. 17. It is then contended by learned counsel that at any rate, complainant having not challenged legality of the sentence imposed by learned magistrate, he cannot straight away challenge sentence as modified by the appellate court. It has to be noted that sentence awarded by the trial court is no 12 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** more in existence as it has been already been set aside or modified by the Sessions Court converting the same to fine of Rs.5,000/-. As such there is no sentence as awarded by the trial court to be challenged in this revision. 18. That leads me to the question whether sentence as modified by the learned Sessions Judge is legal and proper. Counsel for accused contends that there is no illegality or irregularity in the Sessions Judge modifying the sentence to fine of Rs.5,000/-. True, it was within the power of Sessions Court to modify sentence and limit the amount of fine to Rs.5,000/- as done in this case. Then the question is whether modification is regular and proper. When deciding regularity and propriety of sentence one cannot forget the object of legislation. Section 138 of the Act has been introduced with the avowed object of giving credibility to cheque transactions and to compensate payee or holder in due course for loss or injury caused to him by the offence. That is the very reason for providing for sentence of fine even double the cheque amount. Though a complaint under Section 138 of the Act is not a mode of recovery of the amount due under the cheque, one has to bear in mind that it is well within the power of court concerned to award such amount as is sufficient to compensate the payee or holder in due course. 19. Accused has a contention that it is not open to the revisional court to award compensation. Learned counsel contends that revisional power under **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** 13 Section 401 of the Code can be exercised only regarding legality, regularity and propriety of sentence and cannot be invoked to award compensation. This contention overlooks Section 357(4) of the Code which permits Sessions Court or High Court as the case may be to award compensation in appeal or revision. I am unable to understand 'revision' referred to in Section 357(4) of the Code as meaning only a revision filed by the accused against judgment of appellate court confirming conviction. Revision referred to i Section 357(4) of the Code takes in a revision filed by the complainant against extent of sentence. Therefore, it is within the power of the High Court to award compensation in revision invoking Section 357(4) of the Code. 20. I found that conviction of accused under Section 138 of the Act cannot be assailed. Cheque is for Rs.6.5 lakhs. Learned Sessions Judge without considering the object of legislation modified sentence to fine of Rs.5,000/- which I am satisfied, is not proper. Accused is liable to be sentenced taking into account the object of legislation and as the provisions stood as on date of commission of offence. On the facts and circumstances of this case, I consider it just and proper to leave that to the discretion of trial court. For that, sentence imposed by the Sessions Judge has to be set aside and the matter remitted to the trial court to award proper sentence. Resultantly, these revision petitions are disposed of in the following lines:- 14 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** i. Crl.R.P.No.1469 of 2001 fails and it is dismissed. ii. Cr.R.P.No.889 of 2002 is allowed. Sentence as modified by learned Sessions Judge, Kozhikode in Crl.Appeal No.333 of 1998 is set aside and the case is remitted to the court of learned Judicial First Class Magistrate, Payyoli to pass appropriate sentence considering the object of legislation and law as it stood on date of commission of offence. iii. Parties are directed to appear in the trial court on 30.1.2009. iv. Bail bond executed by the accused is cancelled. Crl.M.P.No.6902 of 2001 in Crl.R.P.No.1469 of 2001 will stand dismissed. **THOMAS P.JOSEPH, JUDGE.** **cks** 15 **Crl.R.P.No.1469/2001 & Crl.R.P.No.889/2002** **Thomas P.Joseph, J.** **Crl.R.P.No.1469 of 2001 & Crl.R.P.No.889 of 2002** **ORDER** **11[th] December, 2008**