Ashraf S. v. Primary Co-operative Agricultural and Rural Development Bank Ltd. & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939** ## **Crl.Rev.Pet.No. 1356 of 2017 ()** ## **--------------------------------** **CRA 201/2014 OF III ADDITIONAL SESSIONS COURT, THODUPUZHA** **ST 175/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THODUPUZHA** **------------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------------------------------------** **ASHRAF. S., AGED 42 YEARS, S/O. SAITHUKUNJU, ELPARAMBIL HOUSE, PERUMBILLICHIRA P.O., THODUPUZHA.** **BY ADVS.SRI.M.B.SANDEEP SMT.R.ANJANA SRI.M.J.KIRANKUMAR SMT.R.PRIYA SRI.B.SURJITH SMT.K.P.SREEJA** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **------------------------------------------------------------------** **1. PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO. 4388, THODUPUZHA REPRESENTED BY ITS** **SECRETARY MARYKUTTY T.T., W/O. AUGUSTINE, AGED 61 YEARS,** **PIN CODE - 685 584.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADV. SRI.P.V.BABY R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **ALEXANDER THOMAS, J.** **.................................................................... Crl.RP No.1356 of 2017 .................................................................... Dated this the 21[st] day of November, 2017.** ## **O R D E R** The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in ST No.175/2013 on the file of the Court of Judicial First Class Magistrate-II, Thodupuzha, instituted on the basis of a complaint filed by the first respondent herein. Ext.P7 dishonoured cheque dated 10.12.2012 is for Rs.62,584/-. The trial court as per the impugned judgment rendered on 3.12.2014 had convicted the petitioner for the aforesaid offence and sentenced to undergo simple imprisonment for four months and to pay a fine of Rs.62,584/- and in default thereof to undergo simple imprisonment for a further period of two months. It was also directed that on realisation of the fine amount, the same should be paid in full to the complainant as compensation under Section 357(1) of the Code of Criminal Procedure. The petitioner had preferred Criminal Appeal No.201/14 before the appellate court. The appellate court concerned (Court of III Additional Sessions Judge, Thodupuzha) as per the impugned judgment dated 10.02.2017 has confirmed the finding of conviction and modified the sentence to undergo simple imprisonment till the rising of the court and to pay fine of Rs.62,584/- and in default thereof to undergo simple CrlRP 1356/17 -2- imprisonment for a period of four months. It is challenging these verdicts of the courts below that the petitioner has preferred the instant revision petition. 2. Heard Sri. M.B.Sandeep, learned counsel appearing for the revision petitioner (accused) and Sri.P.V.Baby, learned counsel appearing for the first respondent (complainant) Co-operative Society and Sri. Saigi Jacob Paletty, learned Prosecutor appearing for the second respondent (State). 3. R-1 (complainant) herein is the Primary Co-operative Agricultural and Rural Development Bank Ltd., Thodupuzha. The facts relating to the transaction are broadly similar to the one considered by this Court in the order dated 8.8.2017 in Crl.RP No.893/2017 ( **Shaji** v. **Thodupuzha Primary Co-operative Agriculture and Rural Development Bank Ltd.** ), reported in 2017 (4) KLT SN 44 (C.No.48), wherein also the complainant was the very same co-operative Bank, viz. Thodupuzha Primary Co-operative Agricultural and Rural Development Bank Ltd. This Court by its detailed order dated 8.8.2017 in Crl.RP No.893/2017 has considered the various facets arising out of the agreement between the parties by which the accused therein had taken a loan from the said complainant Bank and had authorised the said Cooperative Bank by agreement in writing that on failure on the part of the CrlRP 1356/17 -3- accused to pay off the amounts covered by the loan agreement as and when demanded, then the Co-operative Bank concerned will be at liberty to fill up the blank signed cheque given by the accused in those transactions and that meticulous procedures have been laid down in those agreements between the parties regarding the manner and method for filling up the cheque consequent on the default made by the accused (borrower) and it was held that the offence under Section 138 of the NI Act will be attracted in such a transaction. Since the transaction in question by the very same Bank in this case is almost similar, it is only to be held that the findings made by the courts below regarding the transactions herein are legally correct and proper. 4. The only argument raised by Sri.M.B.Sandeep, the learned counsel appearing for the revision petitioner (accused) is to the effect that Ext.P5 is the notice dated 1.12.2012 issued by the complainant Bank, whereby the accused was called upon to pay off the amounts covered in that notice, failing which the Bank had notified that they would fill up the cheque and present the same for collection etc. The liability figure shown in Ext.P5 notice dated 1.12.2012 is Rs.62,584/-. Further, it is pointed out that Ext.P7 cheque dated 10.12.2012 is for a total amount of Rs.62,584/-. It is also pointed out that in Ext.P6 ledger extract, there is a clear entry on 3.12.2012 that an amount of Rs.4,500/- CrlRP 1356/17 -4- was also paid by the accused and the total liability figure mentioned in Ext.P6 ledger extract is also Rs.62,584/. On the basis of these factual figures, it is argued by the learned counsel appearing for the petitioner that the payment of Rs.4,500/- made by the accused on 3.12.2012 as entered in Ext.P6 ledger extract has not been taken into consideration in Ext.P5 notice as well as in Ext.P7 cheque and that therefore, the liability figure covered by the cheque is more than the actual liability owned by the accused and that therefore, the offence under Section 138 of the NI Act is not attracted for this reason alone. True that Ext.P5 notice is dated 1.12.2012, wherein the liability figure is shown as Rs.62,584/. It is also correct that in Ext.P6 ledger extract, there is an entry for the date 3.12.2012 that the accused has made a payment of Rs.4,500/-. But the total liability figure mentioned in Ext.P6 ledger extract is Rs.62,584/-. The petitioner has no case that the liability figure shown in Ext.P6 ledger extract is wrong in any manner. The liability figure covered by the dishonoured Ext.P7 cheque dated 10.12.2012 is also Rs.62,584/-. So long as the total liability figure shown in Ext.P6 ledger extract is not under any substantial attack, it cannot be said that the figure shown in Ext.P7 cheque is wrong. That apart, the petitioner has not asked any specific question while confronting PW1 in cross examination as to these material aspects regarding the facts and figures arising out of Ext.P6 CrlRP 1356/17 -5- ledger extract, P5 notice and P7 cheque, and therefore, the prosecution witness was not in a position to give any explanation to the court below about the factual argument now sought to be raised on behalf of the accused for the first time, that too in the revision. For that sole reason alone, the said argument based on factual details cannot be entertained at this revisional stage. It could be that there could have been some mistake in the figure shown in Ext.P5 notice dated 1.12.2012. Ext.P5 notice dated 1.12.2012 is not a statutory demand notice issued under Section 138 proviso (b) of the NI Act. Ext.P5 notice is only the notice issued by the complainant Bank pursuant to the agreement arrived at between the parties that the Bank would issue an advance notice to the accused showing the liability figure in order to alert the complainant to make the payment. Even if it is assumed that there is some mistake in Ext.P5 notice, that by itself will not render the conviction for offence under Section 138 of the NI Act. In the light of these aspects, this Court is not inclined to accept the above said argument made by the accused. For these reasons, it is only to be held that the finding of facts made by both the courts below regarding the conviction of the petitioner is not amenable for any revisional interference at the hands of this Court. The sentence imposed on the petitioner as modified by the appellate court is only the substantive sentence of imprisonment till the rising of the court CrlRP 1356/17 -6- and to pay fine of Rs.62,584/- (which is only the cheque amount) and the default sentence clause of four months’ simple imprisonment. The substantive sentence and fine amount cannot be said to be excessive. Considering the fact that the fine amount is only Rs.62,584/-, the default sentence clause of simple imprisonment could be reduced from four months to one month. The fine amount so realised should be paid to the complainant in terms of Section 357(1)(b) of the Cr.PC. 5. Sri.M.B.Sandeep, learned counsel appearing for the revision petitioner (accused) would submit that in case this Court so inclined to confirm the conviction and sentence etc., then this Court may grant six months time to the petitioner to pay the fine amount of Rs.62,584/-. Since the matter is pending for a long time and the amount is quite small, this Court is not inclined to grant more than four months. Accordingly, it is ordered that the petitioner will pay the said amount of Rs.62,584/- directly to the complainant within the above said time limit of four months. On receiving such payments, the complainant Bank will issue necessary receipts in their prescribed proforma, if any, so as to enable the accused to present those receipts before the trial court to satisfy such payments. Any such payments made by the petitioner directly to the complainant will be treated as if the said amount has been remitted as fine and then disbursed to the complainant as compensation CrlRP 1356/17 -7- in terms of Section 357(1)(b) of the Cr.PC. The petitioner shall appear before the trial court at 11 a.m.on any date on or before 21.4.2018 to receive the sentence of imprisonment till the rising of the court and to satisfy the said Court about payment of Rs.62,584/- directly to the complainant. On default of the petitioner to pay the said amount, he will have to suffer simple imprisonment for a period of one month. Until 21.4.2018, all coercive steps in execution of the impugned sentence in this case will stand deferred. Registry will forward a copy of this order to the trial court, for necessary information. With these observations and directions, this Criminal Revision Petition will stand finally disposed of. ## **(ALEXANDER THOMAS, JUDGE)** jg