Anitha v. State of Kerala and Sreeram Transport Finance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 1986 of 2014 ()** **-------------------------------AGAINST THE JUDGMENT IN Crl. APPEAL 257/2013 of IIIRD ADDL.SESSIONS COURT, KOZHIKODE, DATED 30-08-2014** **& AGAINST THE JUDGMENT IN CC 435/2012 of SPL.J.M.F.C. FOR TRIAL OF MARADU CASES, KOZHIKODE, DATED 30-04-2013** ## **REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------------------------------------------------------------------------** **ANITHA, AGED 49 YEARS, W/O.DAMODARAN NAIR, NADAVILKANDY HOUSE, EYYAD (PO) KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.B.ARUNKUMAR SRI.RANJIT BABU** ## **RESPONDENT(S)/RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:** **--------------------------------------------------------------------------------------------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682 031.** **2. M/S. SREERAM TRANSPORT FINANCE CO.LTD, SREEPADAM BUILDINGS,.CHEROOTTY ROAD, CALICUT PIN 673 032. REPRESENTED BY ITS POWER OF ATTORNEY HOLDER VENUGOPALAN T.** **R2 BY ADV. SRI.C.HARIKUMAR R2 BY ADV. SMT.C.B.ANUROOPA** **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1986 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 18[th] day of December, 2014 ## O R D E R Accused in C.C.No.435/2012 on the file of the Special Judicial First Class Magistrate Court (Marad Cases), Kozhikode, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the 2[nd] respondent/complainant, through their power of attorney holder against the revision petitioner, alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 3. The case of the complainant in the complaint was that, revision petitioner availed a loan for purchasing the vehicle and in discharge of that liability, he had issued Ext.P2 cheque, which when presented was dishonoured for the reasons 'payment stopped by the drawer'. This was intimated to the complainant by their banker vide Ext.P4 letter. The complainant issued Ext.P5 notice vide Ext.P6 postal receipt and the same was Crl. R. P. No.1986 of 2014 2 received by the revision petitioner evidenced by Ext.P7 postal acknowledgement. The revision petitioner had not paid the amount. So she had committed the offence punishable under Section 138 of the Act. Hence the complaint. 4. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, power of attorney holder of the complainant concern was examined as PW1 and Exts.P1 to P9 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the complainant's evidence. She had further stated that, at the time of executing Ext.P8 loan cum hypothication agreement, ten blank signed cheques were obtained and misusing one of the cheques the present complaint was filed. But no evidence was adduced on her side in Crl. R. P. No.1986 of 2014 3 defence. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for two months and also to pay an amount of 7,40,875/-, as₹ compensation to the complainant and in default to undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.257/2013 before the Sessions Court, Kozhikode, which was made over to 3[rd] Additional Sessions Court, Kozhikode, for disposal and the learned Additional Sessions Judge allowed the appeal in part, confirming the order of conviction and also directed to pay compensation with default sentence, but reduced the substantive sentence to imprisonment, till rising of the court. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below. 5. Since the respondent had appeared Crl. R. P. No.1986 of 2014 4 through counsel, this court felt that the revision can be admitted and disposed of after hearing both sides. So the revision is admitted, heard and disposed of today itself. 6. The counsel for the revision petitioner submitted that, the evidence of PW1 is not sufficient to prove the execution of the cheque. Further the case of the revision petitioner was that, ten blank signed cheques were obtained at the time when the loan agreement was executed, is more probable than the case of the complainant that the cheque was not issued in discharge of any liability. So the courts below were not justified in convicting the revision petitioner for the offence alleged. 7. On the other hand, the counsel for the 2[nd] respondent submitted that, the evidence of PW1 will to go show that the cheque was issued in discharge of the loan liability taken, for purchasing the vehicle No.KL-56/C5657 and especially when the revision petitioner had not proved that, the amount was not due and the amounts have been paid, the courts below were perfectly justified and convicting the revision petitioner for the offence Crl. R. P. No.1986 of 2014 5 alleged. So the concurrent findings of the court below do not call for any interference. 8. Heard the Public Prosecutor also. 9. The case of the complainant in the complaint was that, revision petitioner availed a loan of ₹5,91,409/- agreeing to repay the same in 60 monthly instalments and executed Ext.P8 loan cum hypothication agreement on 18.11.2010 and an amount of 6,55,274/-₹ was due and accordingly, she came to the office and settled the claim for 6,50,000/- and in discharge of that₹ liability, she had issued Ext.P2 cheque. The cheque when presented was dishonoured for the reason 'payment stopped by the drawer'. 10. The case of the revision petitioner was that, she availed the loan and at the time of executing the agreement, they have obtained ten blank signed cheques as security and though she paid the amount, the cheques were not returned. The fact that, she availed the loan and executed Ext.P8 loan cum hypothication agreement is not in dispute. Ext.P9 statement of accounts shows that, Crl. R. P. No.1986 of 2014 6 an amount of 6,55,274/- was due as on the date of₹ issuance of the cheque dated 10.10.2011 Further no evidence was adduced on the side of the revision petitioner to prove that she had paid the amount covered by the cheque and no amount was due from her. It is true that the cheque was dishonoured for the reason 'payment stopped by the drawer', but she had no case that, before issuing stop memo, she had informed the complainant the reason for doing so. In the decision reported in **Lakshmi** **Dyechem (M/s.) v. State of Gujarath and Others (2012(4) KHC 826)** , the Hon'ble Supreme Court has held that, even if the cheque was returned for the reason account closed, payment stopped, refer to drawer or signature does not match, even then the offence under Section 138 is attracted and it is for the accused to prove the reason for issuing stop payment and that must be informed to the complainant and he must prove that there was sufficient fund in the account at that time and he had valid reason for issuing stop memo. If that is not established, then merely because the payment was Crl. R. P. No.1986 of 2014 7 stopped by the drawer alone is not sufficient to exonerate him from the criminal liability under Section 138 of the Act. The burden is on the accused to prove that, the cheque was not issued in discharge of any liability. Bare denial of passing of consideration or debt is not sufficient to rebut the presumption available to the complainant under Section 118 and 139 of the Act. This was so held in the decisions reported in **Kumar Exports v. Sharma Carpets [2009(1) KLT 197 (S.C.)], Rangappa v. Mohan [2010(2) KLT 682 (S.C.)]** and **Damodar S. Prabhu v. Sayed Babalal H. [JT 2010 (4) (S.C.)457].** Further she did not send any reply to the notice issued also. In the decision reported in **John Scaria v. State of Kerala (2006(4) KLT 290)** , it has been observed that, after receiving notice, imposing silence will indicate that the case of the complainant is true. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the complainant had proved their case by examining PW1 and producing Ext.P1 to P9 documents that Ext.P2 cheque was issued in Crl. R. P. No.1986 of 2014 8 discharge of a legally enforcible debt and the revision petitioner had committed the offence punishable under Section 138 of the Act and rightly convicted her for the said offence and the concurrent findings of the court below on this aspect do not call for any interference. 11. As regards the sentence is concerned, the trial court had sentenced her to undergo simple imprisonment for two months and also to pay 7,40,875/-₹ as compensation to the complainant, in default to undergo simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. But the appellate court had, though confirmed the compensation aspect with default sentence, reduced the substantive sentence to imprisonment till rising of the court. But in the decision reported in **Somanath Sarkar v. Utpal Basu Mallick [2013(4) KLT 350 (S.C.)]** , the Hon’ble Supreme Court has observed that, there is no provision for payment of compensation in a case under Section 138 of the Negotiable Instruments Act but court has power to impose double the cheque amount as fine 9 Crl. R. P. No.1986 of 2014 and out of the fine, compensation can be paid under Section 357(1)(b) of the Code. So considering this fact, this court feels that compensation can be converted to fine and direction to pay fine amount if realised as compensation to the complainant under Section 357(1)(b) of the Code of Criminal Procedure can be ordered. So the sentence is modified as follows: The revision petitioner is sentenced to undergo imprisonment till rising of the court and also to pay fine of Rs.₹7,40,875/-, in default to undergo simple imprisonment for three months and if the amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. The counsel for the revision petitioner prayed eight months time for payment of the amount. Considering the amount involved and also considering the fact that the revision petitioner is a lady, this court feels that the same can be granted. So the revision petitioner is granted time till 18.08.2015 to pay the amount. Till then, the execution of sentence is Crl. R. P. No.1986 of 2014 10 directed to be kept in abeyance. With the above modification of the sentence as mentioned above and the direction granting time, the revision petition is disposed of. Office is directed to communicate this order to the court below at the earliest. Sd/- ## **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss