ABDULK HAQUE v. THE DHANALAKSHMI BANK LTD. & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 2ND DAY OF JULY 2013/11TH ASHADHA, 1935** **Crl.Rev.Pet.No. 795 of 2003 (B)** **-------------------------------** **AGAINST THE JUDGMENT IN CRA 12/2000 of V ADDL.SESSIONS JUDGE, ERNAKULKAM, DATED 14-08-2002.** **AGAINST THE JUDGMENT IN CC 660/1997 of J.M.F.C.-II, KOCHI, DATED 13-12-1999** ## **REVISION PETITIONER/APPELLANT/ACCUSED:-** **-------------------------------------** **ABDULK HAQUE, S/O.KUTTY MOOSA, KOZHISSERIL HOUSE, VADUTHALA JETTY, AROOKUTTY, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.ROBIN THOMAS PHILIP SRI.DEEPU THANKAN SRI.BIJU JOSEPH** **RESPONDENTS/RESPONDENTS/COMPLAINANT:-** **-----------------------------------** **1. THE DHANALAKSHMI BANK LTD., PALLURUTHY BRANCH, KOCHI : 6, REP: BY ITS MANAGER.** **2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **R2 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN. R1 BY ADV. SRI.B.RAMACHANDRAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-07-2013, ALONG WITH CRL.RP. 1369/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = = Crl.R.P.No.795 of 2003 & Crl.R.P.No.1369 of 2004 = = = = = = = = = = = = = Dated this the 2[nd] July, 2013. ## **O R D E R** These Criminal Revision Petitions are filed challenging the impugned Judgment passed in Crl.Appeal No.12/2000 on the files of the Vth Additional Sessions Judge, Ernakulam. Crl.R.P.No.1369/2004 was filed by the first respondent and Crl.R.P.No.795/2003 was filed by the appellant in the above appeal. They were the complainant and the accused respectively in CC.No.660/1997 on the files of the Judicial Magistrate of the First Class-II, Kochi. The parties are referred to as in the trial court. The above CC was filed by the complainant against the accused under Section 138 of the Negotiable Instruments Act (for short 'the NI Act'). After trial, the learned Magistrate found the accused guilty of the office under Section 138 of the NI Act and convicted thereunder. He was sentenced to undergo **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 2 rigorous imprisonment for 11 months and also to pay a fine of Rs.5,000/-. In default of payment of fine, he shall also undergo simple imprisonment for three months more. If the fine amount is realised, out of the said amount, Rs.3000/shall be given to the complainant as compensation under Section 357(1)(b) of the Criminal Procedure Code. Though the accused had preferred the above appeal, the appellate court also confirmed the conviction, but modified the sentence. The substantive sentence of simple imprisonment and default sentence were reduced to three months and two months respectively and sustained the order to pay fine and compensation as such without any interference. 2. Crl.R.P.No.1369/2004 was filed by the complainant challenging the inadequacy of sentence and Crl.R.P.No.795/2003 was filed by the accused against the conviction and sentence. These Revision Petitions are filed assailing the same judgment passed in appeal on different grounds. **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 3 3. It is the case of the complainant bank that the accused had availed a loan of Rs.25,00,000/- (Rupees twenty five lakhs only) on 1.6.1995 and in discharge of the said debt, issued Ext.P1 cheque dated 31.11.1997 for an amount of Rs.27,30,084/- in favour of the complainant bank. When the bank presented the cheque for encashment, the same was dishonoured stating the reason that 'funds insufficient'. When the dishonour of the cheque was intimated to the petitioner, he requested to re-present the cheque again and the cheque was again presented on two occasions. On those occasions also the cheque was dishonoured for the aforesaid reason. On 2.5.1997 he caused to issue a lawyer notice communicating the dishonour of the cheque in the last occasion and demanding the cheque amount. Though the accused had received the notice on 14.5.1997 he has neither sent a reply nor did he pay off the cheque amount. 4. In 313 statement, the accused admitted the **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 4 signature in Ext.P1 cheque, but contended that the said cheque was given at the time when he availed loan from the complainant bank. As such his contention was that Ext.P1 cheque was not issued for repayment of the loan amount due; but was given as a security. Secondly, the accused contended that, admittedly the cheque was presented twice. But the complainant had not stated the date on which he had presented it the last time and as such there is no evidence to show that the cheque was presented within 15 days from the date of dishonour of the cheque. Thirdly, Exts.D1, D1(a), D1(b) and D1(c) would show that the accused is having Fixed Deposit with the complainant bank in his own name and in the name of minor children worth Rs.12.5 lakhs. But the said deposit was not considered for honouring the cheque. Fourthly, the cheque numbers shown in the complaint and in Ext.P3 notice are different. So, there cannot be a consistent case. 5. To prove the execution and issuance of the cheque, the complainant was examined as Pw1 and the **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 5 Manager of the bank was examined as Pw2 and Exts.P1 to P7 were marked. To prove the defence contention, no oral evidence was given but marked Exts.D1 to D1(c). The complainant had given evidence in terms with the averments in the complaint and dishonour of the cheque due to insufficiency of fund was proved by the evidence of Pw2, the bank Manager and Ext.P2 memo. After analysing the evidence of Pws.1 and 2 coupled with Exts.P1 to P7, the trial court found that the complainant had successfully discharged the initial burden of proving execution and issuance of the cheque and thereby the complainant is entitled to get the benefit of presumption under Sections 118(a) and 139 of the NI Act. 6. Coming to the defence contention, though he had contended that the cheque was issued as security, no evidence had been adduced to substantiate the said contention. Moreover, he did not mount the witness box so as to deny the evidence given by the complainant. **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 6 Regarding the second contention, it is seen that the dishonour of the cheque on 22.4.1997 is evidenced by Ext.P2 dishonour memo. So, the question to be looked into is as to whether the complainant had given statutory notice within 15 days of his knowledge that the cheque is returned dishonoured. The complainant had produced Ext.P8 postal receipt before the Appellate Court and it shows that Ext.P2 dishonour notice was sent to the accused on 6.5.1997, within the time. Thus, it is clear that the accused had issued a statutory notice within the time after the return of Ext.P1 cheque dishonoured with Ext.P2 memo dated 22.4.1997. Ext.P4 shows that the accused received the notice on 14.5.1997. As the accused failed to repay the amount within 15 days from the date of receipt of the statutory notice, the complainant filed the complaint on 16.6.1997 well within the period of limitation. Thus, it could be seen that the complainant had complied with all statutory formalities before filing of the complaint. **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 7 7. The next point raised was that there is a mistake in numbers shown in the complaint and in Ext.P3 notice. It is true that in the complaint, the number of Ext.P1 cheque is shown as 105095, whereas in Ext.P3 notice it is shown as 105695. The cheque bears the very same number as shown in Ext.P3 notice. Pw1 has deposed during the reexamination that it is a typing mistake crept when the complaint was typed. It is pertinent to note that in the complaint itself in the list of documents produced, the number of Ext.P1 cheque is shown as in Ext.P3 notice. Therefore, the explanation of the complainant that it is a typing mistake is probable as well as believable. The accused has no case that he had issued any other cheque to the complainant in connection with any other financial transaction. Moreover, the complainant himself admitted that Ext.P1 is a cheque issued by himself, though the purpose was different, according to him. Therefore, the said contention is liable to be rejected. **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 8 8. The last contention was that he had Fixed Deposit for worth Rs.12.5 lakhs which is evidenced by Exts.D1 to D1 (c). According to the accused, that amount could have been adjusted. But, the evidence of Pw1 shows that the accused had availed loan from the other Fixed Deposit and after adjusting those loan, about Rs.2.85 lakhs is there in the bank as over due deposit. Even if Rs.2.85 lakhs is there, that cannot be adjusted to the encashment of cheque amount when the accused had not made any request to the bank to adjust this amount towards loan amount. Thus, the court below rightly rejected all the contentions raised by the accused and found that the accused miserably failed to rebut the presumptions under Sections 118(a) and 139 of the NI Act, which stood in favour of the complainant. There is no illegality or impropriety in the said finding and I do not find any perversity in the appreciation of evidence from which those findings have been arrived at. Unless it is shown that the findings arrived at by the court below could not have been **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 9 formed on the materials placed or it is so perverse and unacceptable or patently unsustainable under law, this Court is not liable to exercise revisional jurisdiction under Section 397 and 401 of the Cr.PC. Consequently, I confirm the conviction. 9. Coming to the sentence, I find that the sentence imposed on the Revision Petitioner is excessive and disproportionate with nature and gravity of the offence. 10. 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. **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 10 So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 11. In the light of the above decisions, I find that the substantive sentence of imprisonment imposed on the accused is excessive and disproportionate. Similarly, the compensation given to the complainant is inadequate and contrary to the directions of the Supreme Court in the decisions quoted above. So, I am inclined to reduce the substantive sentence of imprisonment and enhance the amount of compensation. In the light of the above decisions, I am inclined to reduce the substantive sentence of simple imprisonment for three months to simple imprisonment for one day till rising of the court and to direct the accused to pay a fine of Rs.27,30,084/-. Resultantly, in supersession of the sentence imposed on the accused by the courts below, the accused who is the Revision Petitioner in Crl.R.P.No.795/2003 is sentenced as **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 11 follows: (i) The Revision Petitioner/Accused shall undergo simple imprisonment for one day till rising of the court. (ii) The Revision Petitioner/accused shall pay a fine of Rs.27,30,084/- (Rupees twenty seven lakhs thirty thousand and eighty four only) and the same shall be given to the complainant under Section 357(1)(b() of the Cr.PC. (iii) In default, the Revision Petitioner/Accused shall under go simple imprisonment for three months. In the result, both Revision Petitions are allowed in part. **==> picture [34 x 10] intentionally omitted <==** **----- Start of picture text -----**<br> Sd-<br>**----- End of picture text -----**<br> **K. HARILAL,** **(Judge)** ## **Kvs/-** -// true copy //- PA TO JUDGE. **Crl.RP.No.795/2003 & Crl.RP.No.1369/2004** 12 ## **K. HARILAL, J.** = = = = = = = = = = = Crl.R.P.No.795 of 2003 & Crl.R.P.No.1369 of 2004 = = = = = = = = = = = **O R D E R** Dated: 02/07/2013.