Abdul Rafeeque v. Nanu Master and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF AUGUST 2017/31ST SRAVANA, 1939** ## **Crl.Rev.Pet.No. 1004 of 2017 ()** **-------------------------------CRL.A.NO. 197/2015 OF SESSIONS COURT, MANJERI ST.NO. 426/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, TIRUR** **------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **ABDUL RAFEEQUE, AGED 46 YEARS, S/O. MOHAMMED, RESIDING AT NADAKKAVIL HOUSE, MOOCHIKKAL DWEEP, VALANCHERY P.O,TIRUR, MALAPPURAM DISTRICT, PIN- 676 552.** ## **BY ADVS.SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH** ## **RESPONDENT(S)/COMPLAINANT/STATE:** **------------------------------------------------------------** **1. NANU MASTER, AGED 47 YEARS, S/O. KELAPPAN, RESIDING AT SAMSKRITHA HOUSE, THOZHUVANOOR P.O, TIRUR, MALAPPURAM DISTRICT, PIN- 676 552.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ALEXANDER THOMAS, J. ================== Crl.R.P.No. 1004 of 2017 ================== Dated this the 22[nd] day of August, 2017 O R D E R The petitioner is accused in Summary Trial Case, S.T.No. 426/2011 on the file of the Judicial First Class Magistrate's Court-I, Tirur, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1[st] respondent (complainant). The trial court as per the impugned judgment dated 8.6.2015 had convicted the petitioner and had sentenced him to undergo imprisonment till rising of the court and to pay compensation of Rs.2,00,000/- to the complainant under Sec.357(3) of the Cr.P.C and in default thereof, the petitioner was sentenced to undergo simple imprisonment for a further period of 3 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.197/2015 before the appellate Sessions Court concerned (Court of Sessions Judge, Manjeri). The appellate court as per the impugned appellate judgment dated 12.7.2017 had upheld the conviction and had also confirmed the sentence, thereby dismissed the appeal. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. Heard Sri.J.R.Prem Navaz, learned counsel appearing for the Crl.R.P.1004/17 - : 2 :- revision petitioner (accused), Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. In the nature of the order that is proposed to be passed in this petition, notice to R-1 (complainant) will stand dispensed with. 3. The gist of the allegations in the complainant is that on 4.12.2010, the accused had borrowed an amount of Rs. 2 lakhs from the complainant with the promise to pay back the said amount within one month for carrying out his house construction and, in discharge of the said liability, the accused had on 4.1.2011 issued the instant Ext.P-1 cheque dated 4.1.2011 for Rs.2 lakhs drawn from his account and payable in favour of the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds as per Ext.P-2 memo dated 18.2.2011. Thereupon, the complainant had issued Ext.P-3 statutory demand notice dated 23.2.2011 by virtue of the provisions contained in Sec.138 proviso (b) of the Negotiable Instruments Act, thereby calling upon the accused to pay off the amount covered by the dishonoured cheque in question within 15 days from the date of receipt of the notice. That the said notice sent by registered post was duly received by the accused as per Exts.P-4 and P-5 and he had not responded to the same. That after following the requisite formalities, the complainant had instituted the instant complaint, which led to the conduct of the trial. Crl.R.P.1004/17 - : 3 :- 4. During the complainant has examined P.W-1 to P.W-3 and have marked Exts.P-1 to P-7 documents and the defence has adduced evidence through D.W-1 but has not adduced any documentary evidence. 5. The trial court found that the complainant (P.W-1) has given evidence broadly in consonance with the contents of his complaint. According to P.W-1, he was working as a teacher in the A.U.P.School, at Vaikkathoor and the accused was working Lab Assistant in Valancherry, Higher Secondary School. That in the year 2010, the complainant had undertaken the construction of his house and at the time same, the accused was also constructing a new house. That P.W-1 had applied for a loan, which was sanctioned for Rs.5 lakhs through the State Bank of India and this was known to the accused, who had approached the complainant through P.W-2, (Sri.Sreejith), who is also a teacher in the Upper Primary School at Vengad and had requested that an amount of Rs.2 lakhs may be temporarily given to the accused for meeting his immediate financial needs in connection with the construction of his house and that it was assured that the amount will be repaid within one month as the accused was expected to get financial assistance by way of loan from a bank. That believing the words of the accused, the complainant on 4.12.2010 had advanced a amount of Rs. 2 lakhs to the accused in the presence of P.W-2. That on 4.1.2011, the accused had come to the house of P.W-1 along with P.W-2. Thereupon, the accused issued Ext.P-1 cheque dated Crl.R.P.1004/17 - : 4 :- 4.1.2011 for Rs.2 lakhs, etc. which resulted in dishonour, etc. P.W-2 has also given evidence which fully fortifies the case of the complainant. Though P.W-1 and P.W-2, have subjected to intensive cross examination, the trial court has noted they have withstood the cross examination and that no contradiction or discrepancy could be brought in their evidence. P.W-3 is the Manager of the State Bank of India, Valancherry, who has deposed that Ext.P-6 is the account of the accused and the specimen signature of the accused has also been produced as Ext.P-7 and the evidence regarding Ext.P-7 specimen signature of the accused has not been challenged by the accused. The defence sought to build up a case by examining D.W-1 who has deposed that P.W-1 had advanced only Rs.1 lakh to the accused, who in turn had issued the blank signed cheque to P.W-1 and he has identified signed cheque, etc. Both the courts below held that the evidence tendered by D.W-1 will not help the accused since during the cross examination of P.W-1 and P.W-2, the accused had never developed such a case as was belatedly sought to be made out through the evidence of D.W-1. It is only at the belated stage of examination of D.W-1, that the accused has set up a new defence as stated herein above. Accordingly, both the courts below held that the evidence of D.W-1 is not reliable and that the said defence version was duly rejected. In the light of all these circumstances, the courts below have held that the evidence tendered by the complainant is broadly believable and credible Crl.R.P.1004/17 - : 5 :- and that the complainant could effectively prove his case and that the complainant is entitled to get the benefit of statutory presumption under Sec. 118(a) and 139 of the N.I. Act, which has not been rebutted by the accused. In the light of all these aspects, both the courts below have concurrently held that the accused is liable to be convicted for the offence under Sec.138 of the Negotiable Instruments Act. The said factual findings cannot be said to be vitiated by perversity or illegality. The petitioner has not been able to establish that any relevant and crucial material evidentiary aspects have been shut out by both the courts below. Therefore, this Court is not in a position to interfere with the said finding of conviction by exercising revisional powers conferred on this Court. 6. As regards the the question of sentence, it is seen that the trial court has imposed only imprisonment till rising of the court and to pay a compensation amount of Rs.2 lakhs under Sec.357(3) of the Cr.P.C. with default sentence clause of 3 months' simple imprisonment. The appellate court has also fully concurred with the said finding. 7. Sri.J.R.Prem Navaz, learned counsel appearing for the revision petitioner (accused) submits that in case this Court is so inclined to affirm the conviction, then this Court may set aside the substantive sentence as otherwise it will affect the service career of the petitioner. 8. A Division Bench of this Court in Saseendran Nair v. General Manager reported in 1996 (2) KLT 482 has held that an act of issuing a Crl.R.P.1004/17 - : 6 :- cheque without sufficient funds cannot be regarded as morally wrong or corrupt and that the court is of the considered view that offence under Sec.138 of the Negotiable Instruments Act will not normally amount to moral turpitude. Further the Division Bench in the case in K.S.R.T.C. v. Abdul Latheef reported in 2005 (3) KLT 955 has construed the provisions contained in Rule 18 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960, and held that every case of conviction for offence under Sec.138 of the Negotiable Instruments Act shall not result in dismissal, etc. Further, the Division Bench of this Court in Ibrahim Kannu v. State of Kerala reported in 2005 (4) KLT 1034 held that Rule 18 of the KCS (CCA) Rules, 1960, provides that before imposing penalty, the disciplinary authority has to consider the circumstances of the case and that the offence under Sec.138 of the Negotiable Instruments Act being an offence in the commercial practice, cannot be taken as one involving moral turpitude in the absence of any other materials to discern moral turpitude, etc. In the proved facts and circumstances of this case, it cannot be said that the petitioner has committed any act involving moral turpitude and therefore the apprehension of the petitioner does not appear to be well founded. What has been essentially alleged and proved in the instant case is only that the cheque issued by the petitioner has been dishonoured for want of sufficient funds and therefore it cannot be held that any element of moral turpitude has been proved in the facts of Crl.R.P.1004/17 - : 7 :- the instant case. In the facts and circumstances of this case, the default sentence of three months could be reduced to 2 months. 9. Accordingly, it is ordered in the interest of justice that the conviction for the offence under Sec.138 of the Negotiable Instruments Act imposed on the petitioner is confirmed. However, the substantive sentence is set aside and in supersession of the orders passed by the courts below, it is ordered that the petitioner will stand only sentenced to pay fine of Rs.2 lakhs. The said fine amount so realised, shall be disbursable as compensation to the complainant in terms of Sec. 357(1) (b) of the Cr.P.C.. On default of the petitioner to pay the abovesaid amount, he will have to undergo simple imprisonment for a period of 2 months. The petitioner is given five months' time to remit the above fine amount. The petitioner will personally appear before the trial court on any day on or before 3.2.2018 to remit the fine amount of Rs.2 lakhs. Until 3.2.2018, all coercive steps for execution of the sentence of fine in this case will stand deferred. The Registry will forward copies of this order to the trial court and to R-1 (complainant). With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.R.P.1004/17 - : 8 :-