Aliyamma George v. State of Kerala & Sree Gokulam Chits and Finance Company (P) Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 Crl.Rev.Pet.No. 1329 of 2011() -----------------------------CRA.321/2010 of SESSIONS COURT, KOLLAM CC.130/2009 of JUDL.FIRST CLASS MAGISTRATE COURT, PUNALUR. .................... REVN. PETITIONERS: PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- ALIYAMMA GEORGE, VELLARAYIL VEEDU, MANJAKKALA P.O., PARANKIMAMUKAL, PATHANAPURAM, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENTS: STATE/COMPLAINANT -------------------------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.SREE GOKULAM CHITS AND FINANCE COMPANY (P) LIMITED, SREE GOKULAM TOWERS NO.66, ARCOT ROAD, CHENNAI-600001, REP. BY ITS ASSISTANT BUSINESS MANAGER A.OMANAKKUTTAN. R1 BY PUBLIC PROSECUTOR SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. -----------------------------------------Crl.R.P. No. 1329 of 2011 ----------------------------------------** Dated the 25th Day of May , 2011 ## **ORDER** Revision petitioner is the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act and aggrieved by the order of conviction and sentence imposed on her by the courts below, she preferred this Crl.R.P. 2. The case of the complainant is that the son of the accused was one of the subscribers of the chitty conducted by the complainant and on receipt of the chit amount he committed default in repayment of the instalments, and on demanding him to pay off the liability, the accused and her son, who is the subscriber of the chitty, approached the complainant in their office and issued Ext.A2 cheque for an amount of Rs.1,27,602/-dated 28.10.2008, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice CRL.R.P 1329/11 **-:2:-** caused to issue by him. With the said allegation, the complainant approached the Judicial First Class MagistrateIII, Punalur by filing a formal complaint whereupon cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.771/2009. But subsequently, as per the order of the Chief Judicial Magistrate, Kollam, the case was made over to the Judicial First Class Magistrate Court -IV, Punalur. During the course of trial, PW1 was examined for and on behalf of the complainant and Exts.A1 to A7 were produced and marked. No evidence is adduced from the part of the accused. After evaluation of the evidence and the materials on record, the trial court has found that Ext.A2 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court CRL.R.P 1329/11 ## **-:3:-** sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.1,30,000/- to PW1, the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of three months. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner-accused had preferred an appeal, but by judgment dated 25[th] March, 2011 in Crl.A.No.321/2010, the court of Sessions Judge, Kollam, while confirming the conviction, the sentence is modified and the compensation amount is enhanced. Accordingly, the learned Sessions Judge sentenced the revision petitioner to undergo simple imprisonment for a period of one month and further directed her to pay a compensation of Rs.1,40,000/- to the complainant, in default, to undergo simple imprisonment for a further period of six months. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. CRL.R.P 1329/11 **-:4:-** 4. I have heard Sri S.Santhosh Kumar, the learned counsel appearing for the revision petitioner and I have perused the orders of the trial court as well as the appellate court. 5. Learned counsel for the revision petitioner vehemently submitted that absolutely, there is no allegation against the revision petitioner so as to attract the offence under section 138 of the NI Act. The learned counsel submitted that neither in the complaint nor in Ext.A5 notice, there is any allegation or averment as to how the revision petitioner/accused is connected with the transaction. According to the learned counsel, no details are given with respect to the transaction and the liability. It is also the contention of the learned counsel that the complainant has miserably failed to substantiate the claim by adducing legal evidence, especially when the accused denied the transaction. Thus, according to the learned counsel, the findings of the trial court as well as the appellate court are unsustainable either in law or on facts. I am unable to sustain the above contentions. CRL.R.P 1329/11 **-:5:-** 6. The specific case of the complainant as revealed through the deposition of PW1 is that, the son of the revision petitioner was one of the subscribers of the chitty conducted by the complainant and connected with that transaction, amount was due from the son of the accused and on demand for the same, the accused and her son approached the complainant and the accused undertook that liability connected with the chitty transaction between the complainant and the son of the accused and towards the discharge of the said liability, the accused issued the cheque in question. In this juncture it is relevant to note that though a legal notice was sent and received by the accused, she did not send any reply denying the transaction, either between the complainant and her son or herself. This court, In the decision in **Basheer v. T.N. Radhakrishnan** (2005 (1) KLD (Cri) 245(), has held that, in a prosecution for the offence under section 138 of the NI Act, it is not necessary for the complainant to plead in the complaint the details as to how liability towards the cheque arose. The learned CRL.R.P 1329/11 **-:6:-** counsel for the petitioner read over to me the main averments in the complaint which are sufficient to attract the offence under section 138. In the light of the above decision and in view of the averments contained in the complaint, the contention of the learned counsel is liable to be rejected. 7. Though PW1 was subjected to lengthy cross examination, nothing is brought on record to discredit his version that the accused and her son, who is the defaulter, came to the office of the complainant and the accused undertook the liability of her son and thus the accused issued Ext.A2 cheque, which pertained to the account maintained by her which also contained the signature of the accused. There is no explanation as to how the same reached in the possession of the complainant. The trial court as well as the appellate court based upon the materials and evidence, found that the complainant has prima facie established its case and naturally, the presumption under section 139 of the Act is available in favour of the complainant. If that be so, it is CRL.R.P 1329/11 **-:7:-** for the accused to rebut the presumption. In the present case, there is no plausible and convincing explanation as to how Ext.A2 cheque reached in the possession of the complainant. In the absence of such explanation it cannot be said that the accused has succeeded in rebutting the presumption under section 139 of the NI Act which is available in favour of the complainant. Therefore, I find no reason to interfere with the concurrent findings of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 8. Regarding the sentence, the learned counsel for the revision petitioner submitted that the revision petitioner is a lady and therefore a lenient view may be taken in the matter of sentence. According to me, the above submission requires positive consideration, especially, in the light of the facts and circumstances involved in the case. In the present case, the cheque in question covers a sum of Rs.1,27,602/-. The trial court while disposing of the matter directed the revision petitioner to pay a compensation of Rs.1,30,000/- to the CRL.R.P 1329/11 **-:8:-** complainant and also sentenced her to undergo simple imprisonment for a period of 6 months, but in appeal, the period of sentence of imprisonment is modified and reduced into one month simple imprisonment whereas the accused is directed to pay a compensation of Rs.1,40,000/- to the complainant. The Apex Court, in its recent decision in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspects. Having regard to the facts and circumstances involved in the case, particularly, the accused being a lady, I am of the view that it is only just and proper to suggest the sentence of fine as contemplated under 138 of the NI Act instead of awarding both. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act as recorded by the trial court as well as the appellate court. Accordingly, the sentence of imprisonment ordered by the trial court CRL.R.P 1329/11 **-:9:-** and modified by the appellate court is set aside and the direction to pay compensation is also set aside. The revision petitioner is sentenced to pay a fine of **Rs.1,45,000/- (Rs.one lakh forty five thousand only)** within a period of 3 months from today. If there is any default on the part of the petitioner in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of four months. Accordingly the revision petitioner is directed to deposit the above amount of fine in the trial court on or before **25[th] August, 2011** . If there is any default on the part of the revision petitioner in depositing the above amount as directed above, the trial court is free to take coercive steps against the revision petitioner to secure her presence and to execute the sentence and for realisation of the fine amount. On realisation of the fine amount, a sum of **Rs.1,42,500/-** (Rs.one lakh forty two thousand and five hundred only) shall be given to the complainant as compensation under section 357(1)(b) Cr.P.C. and the remaining amount of CRL.R.P 1329/11 ## **-:10:-** Rs.2500/- shall be deposited in the State Ex chequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 25[th] August, 2011. This Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE** kvm/-