A.V. Lajeev v. K.B. Raojee and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 Crl.Rev.Pet.No. 3189 of 2010() -----------------------------CRA.102/2009 of ADDL.SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.482/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- A.V.LAJEEV, S/O.JOSEPH, AGED 34, VADAKKEKKARA HOUSE, ULLANNUR P.O., PANDALAM, PATHANAMTHITTA. BY ADV. SRI.C.S.MANILAL SRI.S.NIDHEESH RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. K.B.RAOJEE, AISWARYA, CHERUVARANAM, VARANAM, CHERTHALA-688 555. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **-----------------------------------------Crl.R.P. No.3189 of 2010 ----------------------------------------** Dated the 18[th] Day of November, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed on him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque, Ext.P1, dated 7.10.2005 for the said amount which when presented for encashment, dishonoured with the endorsement “account closed” and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Cherthala by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No. 482/2006. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, DWs 1 and 2 were CRL.R.P 3189/10 **-:2:-** examined and produced Extrs.D1 and D2. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 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 sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and ordered to pay compensation of Rs.1,00,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of two months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 22.7.2010 in Crl.A.No.102/2009, the court of Addl. Sessions Judge, (Fast Track-II), Alappuzha, dismissed the appeal confirming the conviction and sentence imposed on the revision petitioner. It is the above order of conviction and sentence and the verdicts of the courts below challenged in this Crl.R.P. CRL.R.P 3189/10 **-:3:-** 4. I have heard Sri C.S.Manilal, the learned counsel appearing for the revision petitioner and I have also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner has vehemently argued that the complainant has miserably failed to establish the offence under section 138 of the N.I.Act against the revision petitioner, since he had failed to produce any evidence or materials to show the execution and issuance of the cheque. According to the learned counsel, the revision petitioner has clearly established the defence and thereby rebutted the presumption under section 139 of the N.I.Act. But the courts below miserably failed to consider the proved defence. In support of the above submission , the learned counsel took me through the deposition of PW1 and read over few words of the complainant stating that he does not know as to who had written the cheque in question, and submitted that the execution is not proved. In support of the above submission, the learned counsel placed reliance on the decision of this court in **Gopan v. Tonny Varghese** (2008(1) KLT 257). It is also the submission of the learned counsel that the specific defence taken by the accused is to the effect that the cheque in question was given as a security CRL.R.P 3189/10 **-:4:-** connected with the transaction between DW1 and one Sugathan, who is the brother-in-law of the revision petitioner and the said transaction was closed and subsequently, according to the revision petitioner, he instructed the complainant to get back the cheque in question from DW1 for and on behalf of the revision petitioner since he was out of station during that period and thus, DW1 entrusted the cheque with the complainant. Thus according to the revision petitioner, the cheque in question was not the one issued and executed in favour of the complainant but the same was handed over to DW1 connected with another transaction. It is also the submission that though the said Sugathan, the brother in law of the revision petitioner was not examined, the accused examined DW1 and DW2 and also produced Exts.D1 and D2 documents and the evidence so adduced by the defence is sufficient to substantiate the version of the defence. 6. I am unable to sustain the above contention. The specific allegation of the complainant is that the accused borrowed a sum of Rs.1.00,000/- from the complainant and towards the discharge of the said liability, the accused issued the cheque in question . There is no dispute that the cheque in question contained the signature of the revision petitioner/accused and the CRL.R.P 3189/10 ## **-:5:-** same pertained to the account maintained by the revision petitioner. It is to be noted that when PW1 was examined, he had deposed that he does not know who had filled up the cheque and the endorsement therein. From the proof affidavit, the version of PW1 is to the effect that the accused handed over the cheque in question which contained the date and PW1 was convinced that on presentation of the cheque, the same would be honoured. In this juncture, it is pertinent to note that the cheque in question which pertained to the account of the accused and which contained the signature of the accused, produced from the possession of the complainant, in support of his allegation against the revision petitioner. It is also relevant to note that the complainant and the revision petitioners are not strangers and it is an admitted fact that the complainant is the brother in law of the brother-in-law of revision petitioner. There is no explanation from the part of the revision petitioner as to why the complainant filed the complaint against the revision petitioner if the allegation of the revision petitioner is true. It is also relevant to note that even according to the revision petitioner, the cheque in question was duly executed by him by putting his signature but even though the revision petitioner has got a case that thereafter the cheque was not CRL.R.P 3189/10 **-:6:-** issued to the complainant but the same was given as security connected with the transaction between Sugathan, the brother-inlaw of the revision petitioner and DW1. So in that sense, the cheque is duly executed and the fact yet to be ascertained is that how the cheque in question reached in the hands of the complainant. The complainant produced the cheque from his possession but there is no convincing explanation on the part of the revision petitioner as to how Ext.P1 cheque reached in the possession of the complainant. Exts.D1 and D2 documents produced by the defence is to prove defence version. During the appreciation of the defence evidence, the trial court as well as the appellate court has categorically found that the evidence of DW1 will not be helpful for the defence. Even according to DW1, the amount involved is only Rs.15,000/- and not Rs.1,15,000/- as claimed by the revision petitioner. DW1 has denied the execution and issuance of Ext.D2 documents. There is no clinching or satisfactory evidence to the effect that the cheque in question was the one that entrusted with DW1. There is also no explanation from the side of the defence as to how the cheque in question reached in the hands of the complainant if the same was with DW1. In this juncture it is relevant to note that though CRL.R.P 3189/10 ## **-:7:-** the lawyer notice was caused to send at the instance of the complainant, no reply was furnished by the accused at appropriate time and the defence was set up only at the time of Section 313 questioning of the accused. In the light of the above facts and the discussion, I am of the view that the revision petitioner has miserably failed to make out a case so as to interfere with the concurrent finding of the courts below. Therefore, the findings arrived by the courts below and the conviction recorded against the revision petition is confirmed. 7. As this court is not inclined to interfere with the order of conviction, the counsel submitted that the sentence imposed on the revision petitioner is unreasonable and exorbitant and a reasonable time may be granted to the revision petitioner to compensate the complainant. 8. Having regard to the above facts and circumstances especially, in the light of the fact that the parties are close relatives, I am of the view that the said submission requires serious consideration. There is no dispute that the complainant as well as the revision petitioner are close relatives. But though the cheque in question is dated 7.10.2005, that too for an amount of Rs.1,00,000/-, the said amount is due to the complainant for the last CRL.R.P 3189/10 **-:8:-** five years. 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 aspect. Therefore, according to me, in the light of the above legal position, the sentence of imprisonment imposed on the revision petitioner requires reconsideration and the interest of the complainant can be saved by directing the revision petitioner to compensate him for which some time can be granted. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act recorded by the courts below. Accordingly in supersession of the sentence of imprisonment ordered by the courts below, the revision petitioner is sentenced to pay a fine of **Rs.1,25,000/-** which he shall be deposited within three months from today failing which he is directed to undergo simple imprisonment for a period of three months. Accordingly the revision petitioner is directed to deposit the fine amount in the trial court on or before **18[th] February 2011** . If there is any default on the part of the revision petitioner in depositing the fine amount before the trial court as directed CRL.R.P 3189/10 ## **-:9:-** above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. On realisation of the fine amount, a sum of **Rs.1,20,000/-** shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C and the remaining amount shall be deposited in the State Ex Chequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 18.2.2011. This Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE** **kvm/-**