Alikkatu Veetil Musthafa v. The State of Kerala and Puthalath Muhammedkunhi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **Crl.Rev.Pet.No.1008 OF 2019** **AGAINST THE JUDGMENT IN CRA 135/2017 DATED 14-05-2019 OF SESSIONS COURT,KASARAGOD** **AGAINST THE JUDGMENT IN CC 780/2013 DATED 29-07-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **ALIKKATU VEETIL MUSTHAFA, AGED 46 YEARS S/O.K.K.MUHAMMED, F VILLA, SHUALI HOUSE, KAVUNTHALA, NEAR GOLDEN HOUSE, P.O.PADANNA, PADANNA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** **1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.** **2 PUTHALATH MUHAMMEDKUNHI, AGED 60 YEARS, S/O.KUNHAMMED, RESIDING AT FARZANA MAHAL, EDACHAKAI, UDINOOR P.O., HOSDURG TALUK, KASARAGOD DISTRICT - 671 310.** **R1 BY SRI AJITH MURALI, PP R2 BY ADV. SHRI.JAWAHAR JOSE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.02.2020, THE COURT ON 06.02.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.1008 OF 2019** **2** ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No. 1008 of 2019** ## **--------------------------------------------** Dated this the 6[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C No.780/2013 on the file of the Court of the Judicial First Class Magistrate-I, Hosdurg. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to imprisonment till the rising of the court and to pay a fine of Rs.29,50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. 3. The petitioner filed Crl.A.No. 135/2017 before the Court of Session, Kasaragod, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. **Crl.Rev.Pet.No.1008 OF 2019** **3** 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 5. Heard the learned counsel for the revision petitioner and also the second respondent/complainant. 6. The case of the complainant is as follows: The complainant and the accused had entered into a partnership on 22.06.2011 and they were carrying business in textiles and readymade garments in the name “M/s Alikkad Silks”. The complainant had got 50% share in the partnership. As per the agreement dated 01.02.2012, the value of the share of the complainant in the partnership was determined as Rs.29,50,000/- and the accused purchased the share of the complainant for that amount. The accused agreed to pay the aforesaid amount to the complainant on or before the date 31.01.2013. Towards that amount, the accused issued a post-dated cheque for Rs.29,50,000/-, which was dated 31.01.2013. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the **Crl.Rev.Pet.No.1008 OF 2019** **4** amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P7 documents were marked on the side of the complainant. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence with regard to the partnership business conducted by him and the accused and the purchase of his share by the accused in the partnership and also execution of Ext.P1 agreement by him and the accused in that regard. PW1 also gave evidence that the accused issued Ext.P2 cheque dated 31.01.2013 towards the amount payable by the accused as per Ext.P1 agreement. 9. Execution of Ext.P1 agreement is not disputed by the accused. Ext.P1 agreement clinches the issue with regard to the transaction between the complainant and the accused and also issuing of the cheque by the accused to the complainant. Ext.P1 agreement shows that the share of the complainant in the partnership was valued at Rs.29,50,000/- and that the accused agreed to pay that amount and purchased the share of the complainant in the firm. Ext.P1 agreement further shows that the accused had agreed to pay the amount to the complainant on or before the date 31.01.2013. **Crl.Rev.Pet.No.1008 OF 2019** **5** 10. The fact that issuing of Ext.P2 cheque by the accused to the complainant is not mentioned in Ext.P1 agreement is of no consequence. The accused has admitted Ext.P1 agreement. The accused has no case that he paid the amount of Rs.29,50,000/- to the complainant in any other manner. Therefore, it can be very well concluded that he had issued Ext.P2 cheque to the complainant towards the amount of Rs.29,50,000/- which was payable by him to the complainant as per Ext.P1 agreement. 11. The plea of the accused, during the examination under Section 313 Cr.P.C, was that he went abroad seeking a job and at that time, the firm was possessed and run by the complainant and the licence was changed in the name of the complainant and that the complainant was liable to pay 50% of the share to him. This plea made by the accused could not be believed in the light of Ext.P1 agreement. 12. The accused had received the statuary notice sent to him by the complainant. He did not send any reply to the notice. If as a matter of fact, he did not owe an amount of Rs.29,50,000/- to the complainant and if he had not issued the cheque to the complainant in discharge of that liability, he would have definitely sent a reply to the notice. He would not have remained silent and inactive on receiving a **Crl.Rev.Pet.No.1008 OF 2019** **6** lawyer notice from the complainant demanding such a huge amount from him. The very fact that he did not send any reply to the statutory notice leads to the inference that the version of the complainant is true. 13. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence **Crl.Rev.Pet.No.1008 OF 2019** **7** under Section 138 of the Act is only to be confirmed. 14. The trial court has imposed on the petitioner/accused a sentence of imprisonment till the rising of the court and fine of Rs.29,50,000/-. There is no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the trial court, which stands affirmed by the appellate court, except with regard to the default sentence imposed on him. 15. Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence under Section 138 of the Act, as affirmed by the appellate court, is confirmed with the slight modification that in default of payment of fine, the accused shall undergo simple imprisonment for a period of three months. Needless to state that, on realisation of the fine amount, it shall be paid to the complainant as compensation. 16. Learned counsel for the petitioner/accused prayed that the petitioner may be granted some time for remitting the fine amount in the trial court. In this context, the conduct of the petitioner has to be taken into consideration. During the pendency of the revision petition, he had agreed to pay the amount due to the complainant in three instalments, Rs.8,00,000/- on 31.12.2019, Rs.10,00,000/- on **Crl.Rev.Pet.No.1008 OF 2019** **8** 31.03.2020 and Rs.11,50,000/- on 31.05.2020. However, he did not pay the first instalment of Rs.8,00,000/- which was due on 31.12.2019 in compliance with the order passed by this Court on 27.09.2019. In such circumstances, I find that it is not expedient to grant any time to the petitioner/accused to remit the fine amount in the trial court. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn