Ambili Aravindan v. State of Kerala and M/S Shriram Transport Finance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 20TH DAY OF SEPTEMBER 2013/29TH BHADRA, 1935 Crl.Rev.Pet.No. 1866 of 2013 () ------------------------------------------- AGAINST THE JUDGMENT IN Crl.A 3/2011 of ADDITIONAL SESSIONS COURT (ADHOCII), KOLLAM DATED 22-06-2013 AGAINST THE JUDGMENT IN ST 267/2009 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT - III, KOLLAM DATED 06-12-2010 REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- AMBILI ARAVINDAN, AGED 54 YEARS, W/O.ARAVINDAN, NOW RESIDING AT VASANTHALAYAM, THAMARAKULAM, KOLLAM. BY ADV. SRI.RAJIT RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: -------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.SHRIRAM TRANSPORT FINANCE CO.LTD., NAZEEMA COMPLEX, HOSPITAL ROAD, KOLLAM, REPRESENTED BY ITS AUTHORIZED OFFICER, B.S.VIMAL KRISHNAN, AGED 36 YEARS, ASST.EXE. SHRIRAM TRANSPORT FINANCE CO.LTD., DIVISIONAL OFFICE, NAZEEMA COMPLEX, HOSPITAL ROAD, KOLLAM-691001. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- ## K. RAMAKRISHNAN, J. ---------------------------------------Crl.R.P.NO. 1866 OF 2013 ---------------------------------------Dated this the 20[th] day of September, 2013 ## O R D E R The accused in S.T.No.267 of 2009 on the file of the Judicial First Class Magistrate’s Court-III, Kollam, is the revision petitioner herein. 2. The case was originated on the basis of a private complaint filed by the 1[st] respondent alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’). It is alleged in the complaint that the accused had issued Exhibit P1 cheque in discharge of her liability to the complainant concern regarding the amount for purchasing a vehicle dated 11.12.2006 drawn on Quilon Urban Bank Ltd., Kollam, in favour of the complainant. The complainant presented the cheque for collection and the same was dishonoured for the reason ‘funds insufficient’, vide Exhibit P2 dishonour memo and that was intimated to the complainant by their banker vide Exhibit P3 remittance memo. The complainant issued Exhibit P4 notice, evidenced by Exhibit P5 postal receipt, to the accused intimating the dishonour and demanding payment of amount. But the accused had not paid the amount, so she had committed the Crl.R.P.NO. 1866 OF 2013 2 offence punishable under Section 138 of the Act. Hence the complaint was filed by PW1 on the basis of Exhibit P6 letter of authorisation given by the first respondent bank. On the basis of the evidence, the trial court found the appellant guilty under Section 138 of the Act and convicted her thereunder and sentenced to undergo simple imprisonment for six months and also to pay a compensation of `3,35,000/-, in default, to undergo simple imprisonment for three months under Section 357 (3) of the Code of Criminal Procedure. 3. Aggrieved by the same, the revision petitioner filed an appeal before the Sessions Court, Kollam and the learned Additional Sessions Judge (Adhoc No.II), Kollam, dismissed the appeal by the impugned judgment dated 22.06.2013. Dissatisfied with the same, the revision petitioner has filed the above revision. 4. On going through the concurrent findings of the courts below, since I felt that there is no merit in the revision as far as the conviction portion is concerned, I thought that the revision can be disposed of at the admission stage itself, after hearing the Public Prosecutor, who is appearing for the first respondent and dispensing with the notice to the 2[nd] respondent/complainant. Crl.R.P.NO. 1866 OF 2013 3 5. The learned counsel for the revision petitioner submitted that in fact, there was no transaction between the petitioner and the complainant and the transaction was between her husband and the complainant. A blank signed cheque given was misused and the present complaint was filed. There is no evidence adduced on the side of the complainant to prove the transaction and as such no offence under Section 138 of the Act is attracted. So she prayed for allowing the revision. 6. On the other hand, the learned Public Prosecutor submitted that there is no illegality committed by the courts below in appreciating the evidence. 7. The case of the complainant in the complaint was that the accused issued Exhibit P1 cheque to settle outstanding liabilities in respect of the purchase of the vehicle and accordingly the accused has issued the cheque and it was dishonoured on presentation. 8. The case of the accused was that the cheque was issued as security for the loan transaction between the complainant and her husband. There is no transaction between herself and the complainant. In order to prove the case of the complainant, the Crl.R.P.NO. 1866 OF 2013 4 authorised agent of the complainant was examined as PW1 and he deposed in support of his case in the complaint. Though he was cross-examined at a length, nothing was brought out as to discredit his evidence regarding this aspect. 9. However, in the decision in Devan v. Krishna Menon reported in [2010 (2) KLT 397], this court has held that in a case under Section 138 of the Act, there is no necessity for the complainant to establish the original cause of action. They need not prove the entire transaction as well. Once it is proved by the complainant that the accused had executed the cheque and issued the cheque, in discharge of her liability or undertaking or the liability of another, then if the formalities were complied with and the accused did not pay the amount, then the offence under Section 138 of the Act is attracted. In this case no reply was sent by the accused when the complainant issued notice intimating the dishonour and demanding payment of the amount. 10. In the decision in Rengappa v. Mohanan reported in [2010(2) KLT 682], the Honourable Supreme Court has held that the very fact that the accused had failed to send reply to the statutory notice issued under Section 138 of the Act leads to the Crl.R.P.NO. 1866 OF 2013 5 inference that there is merit in the complainant’s version. Except the fact that a suggestion was given that a blank signed cheque was given, there is no evidence adduced on the side of the accused to prove this fact. So under the circumstances and also in the absence of any convincing evidence adduced on the side of the accused to rebut the presumption, the courts below were perfectly justified in relying on the evidence of PW1 and the documentary evidence, Exhibit P1 to P5 and coming to the conclusion that the complainant had proved that the accused had issued Exhibit P1 cheque, in discharge of her liability, for the amount legally due from her, to the complainant and in spite of notice issued intimating the dishonour and demanding the payment of the amount, she had not paid the amount and thereby she had committed the offence punishable under Section 138 of the Act. So there is no illegality committed by the courts below in arriving at a conclusion that the accused had committed the offence punishable under Section 138 of the Act and the findings of the courts below to that extent is perfectly justifiable and no interference is called for regarding the same. 11. The counsel for the revision petitioner submitted that Crl.R.P.NO. 1866 OF 2013 6 apart from awarding compensation of the cheque amount, substantive sentence of six months imprisonment was imposed, which is harsh. 12. It is true that exorbitant sentence was provided under the Act to keep up the validity of issuing cheque in the business world. But at the same time, the intention of the legislature though appears to make it a penal one, but appears to give an opportunity to the accused, to pay the amount and see that the cheque amount is realized and paid to the complainant. Considering the fact that the accused is a lady and also the real intention of the legislature is this aspect, I feel that the substantive sentence can be reduced to imprisonment till the rising of court besides awarding the cheque amount as compensation with default sentence, is sufficient to meet the ends of justice as far as the revision petitioner and the complainant are concerned. So the substantive sentence of six months imprisonment imposed by the courts below is set aside and the same is reduced to imprisonment till the rising of court. So the sentence imposed by the courts below is modified as follows: Crl.R.P.NO. 1866 OF 2013 7 The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay `3,35,000/- as compensation to the complainant, in default, to undergo simple imprisonment for three months under Section 357 (3) of the Code of Criminal procedure. The counsel for the revision petitioner also submitted that eight months time may be granted for depositing the amount. The revision petitioner is given time till 28.02.2014, to pay the amount. Till then, the trial court is directed to keep the execution of sentence in abeyance. The revision petitioner is directed to surrender before the concerned Magistrate’s Court on 28.02.2014 to receive the sentence. While confirming the order of conviction passed by the courts below, the sentence is modified as stated above and the revision petition is disposed of accordingly. Sd/K. RAMAKRISHNAN, JUDGE. // True Copy // P.A. To Judge DSV/-