Babu T.V. v. P.P. Baby and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY, THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935 Crl.Rev.Pet.No. 1902 of 2010 ( ) --------------------------------- AGAINST THE JUDGMENT IN CRL.A 380/2009 of ADDL.DISTRICT & SESSIONS COURT (ADHOC-III),N.PARAVUR DATED 23-03-2010 AGAINST THE JUDGMENT IN CC 1063/2005 of J.M.F.C.-I, ALUVA DATED 02-06-2009 ## REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------------- BABU T.V., AGED 47 YEARS, THOTTUNGAL HOUSE, CHOWARA, THETTALI ALUVA. BY ADV. SRI.K.S.RAJEEV (ALUVA) ## RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE: --------------------------------------------------------------------------------- 1. P.P.BABY, AGED 46 YEARS, PERUMAYAN HOUSE, CHOWARA, SREEMOOLANAGARAM ALUVA-683 580. 2. STATE OF KERALA, REPRESENTED BY P.P., HIGH COURT OF KERALA-31. R1 BY ADV. SRI.SHEEJO CHACKO R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AV Crl.Rev.Pet.No. 1902 of 2010 ( ) ## APPENDIX ## PETITIONER'S ANNEXURES : ANNEXURE A : TRUE COPY OF JUDGMENT IN CC.1063/05 OFJUDICIAL FIRST CLASS MAGISTRATE COURT-I ALUVA DATED 2.6.09 ANNEXURE B : TRUE COPY OF JUDGMENT IN CRIMINAL APPEAL NO: 380/09 OF ADDITIONAL DISTRIT AND SESSIONS COURT (AD-HOC III), NORTH PARAVOOR, DATED 23.3.2010 ## RESPONDENTS' ANNEXURES : NIL /TRUE COPY/ P.A TO JUDGE AV ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.1902 of 2010** = = = = = = = = = = = = = = = Dated this the 9[th] day of September, 2013 ## **O R D E R** The Revision Petitioner is the accused in C.C No.1063 of 2005 on the files of Judicial First Class Magistrate's Court-1, Aluva. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') on a complaint filed by the 1[st] respondent herein. After trial, the learned Magistrate found the Revision Petitioner guilty of the said offence and convicted therein. He was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs.60,000/-(Rupees Sixty Thousand only). In default, to undergo simple imprisonment for sixty days. Aggrieved by the conviction entered and sentence imposed on the Revision Petitioner, though he had preferred Crl.Appeal No.380 of 2009 before the Additional District and Sessions Judge (Adhoc-III), North Paravur, the learned Sessions Crl.R.P.No.1902 of 2010 2 Judge also, after re-appreciating the entire evidence on record, confirmed the verdict of guilty and conviction and modified the sentence. The substantive sentence of imprisonment for a period of six months was reduced and modified to imprisonment for three months and maintained the rest of the sentence as such. This Revision Petition is filed challenging the concurrent findings of conviction and modified sentence imposed on the Revision Petitioner. 2. It is the case of the 1[st] respondent/complainant that the Revision Petitioner had borrowed Rs.60,000/- from him and for discharging that liability he issued Ext.P1 cheque for an amount of Rs.60,000/- (Rupees Sixty Thousand only) dated 25/05/2005 in favour of the 1[st] respondent/complainant. On presentation for encashment, the said cheque was dishonoured for want of sufficient funds. Though he caused to issue a lawyer's notice and the same had been received, the Revision Petitioner has not sent a reply nor did he pay off the cheque amount. Thus he Crl.R.P.No.1902 of 2010 **==> picture [7 x 10] intentionally omitted <==** has committed the offence punishable under Section 138 of the N.I.Act. 3. To prove the execution and issuance of the cheque the complainant was examined as PW1 and Exts.P1 to P5 were marked. No oral evidence was adduced by the accused; but produced and marked Ext.D1 notice dated 08/08/2002. 4. In defence, at the time of questioning under Section 313, the Revision Petitioner has stated that Ext.P1 cheque was issued by him to the complainant at about 12 years ago when he had purchased bricks on credit. But nothing has been produced to substantiate the said contention. After considering the evidence adduced by both sides, the learned Magistrate found that the complainant had successfully discharged the initial burden of proving the execution and issuance of the cheque; but the Revision Petitioner miserably failed to rebut the presumption under Section 118 (a) and 139 of the N.I. Act which stood in Crl.R.P.No.1902 of 2010 **==> picture [7 x 9] intentionally omitted <==** favour of the complainant/1[st] respondent. 5. Firstly, the learned counsel for the Revision petitioner pointed out that first paragraph of proof affidavit states that the cheque was presented for encashment through IDBI Bank, Kochi Branch. The second paragraph indicating the cause of action states that the cheque was presented in Desabhivardhini Bank, Aluva. Thus there is a discrepancy as regards to the bank in which the cheque was presented for encashment. Per contra, the learned counsel for the complainant submits that the complainant had account in Desabhivardhini Bank and the cheque was actually presented in Desabhivardhini Bank. Since it was a Co-operative bank, they sent the cheque for collection through IDBI bank, a nationalized bank which had the authority to make payment. Going by the explanation given by the complainant, I am of the opinion that the said discrepancy even if it is true, it is of no consequence at all, so long as, the issuance of the cheque and the dishonour of Crl.R.P.No.1902 of 2010 **==> picture [7 x 10] intentionally omitted <==** the cheque for want of sufficient funds is admitted by the revision petitioner. Moreover, the said discrepancy raised in this revision was not put to the complainant while cross examining him. Therefore, I find that the said contention sans bona fides. I am of the opinion that whichever be the presenting bank, the same has no consequence at all when the issuance of the cheque and the dishonour of the cheque for want of sufficient fund is proved by Ext.P2 dishonour memo dated 2.6.2005 and Ext.P1 cheque dated 25.5.2005. 6. Secondly, the specific case of the accused is that Ext.P1 cheque was one among the two cheques which were issued in the year 2002 and among those two cheques, one cheque was presented in the year 2002 itself for an amount of Rs.90,000/- and pursuant to dishonour of the said cheque, Ext.D1 notice was issued. According to the learned counsel, both transactions are one and the same and both cheques were presented for the same amount due to the complainant in the year 2002 in a transaction of purchasing Crl.R.P.No.1902 of 2010 **==> picture [7 x 10] intentionally omitted <==** bricks on credit. When a specific question was put to the complainant during the cross examination, it is seen that the complainant has clarified and admitted the issuance of Ext.D1 notice in the year 2002. He further deposed that though Ext.D1 notice had been issued, that transaction was closed by payment of the amount demanded by Ext.D1 notice and there is no connection between the said transaction of the year 2002 and the present transaction of the year 2005. Both transactions are different and distinct. But, thereafter the revision petitioner had not produced any evidence to connect the present transaction with the transaction of the year 2002. That apart, the amount quantified in Ext.P1 cheque is 60,000/ -and the amount₹ shown in Ext.D1 cheque is 90,000/-. That difference also₹ goes to a long way to justify the clarification of the complainant that transactions are different and distinct. Therefore, I find that these two contentions raised in this revision petition is not sustainable under law. Crl.R.P.No.1902 of 2010 **==> picture [7 x 10] intentionally omitted <==** 7. Thirdly, the learned counsel for the Revision Petitioner pointed out that the complainant does not state anything about the original transaction either in the complaint or in evidence. In **Devan v. Krishna Menon** (2010(2) KLT 397), this Court held that it is not the law at all in a prosecution under Sec.138 of the Negotiable Instruments Act, the complainant must establish the original cause of action in meticulous details. That is precisely why the presumption under S.139 of the Negotiable Instruments Act has been incorporated in addition to the presumption under S.118 of the Evidence Act which was already there. In **Johnson Scaria v. State of Kerala** (2006(4) KLT 290), this Court held that admission of signature in a cheque goes a long way to prove due execution. Possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. In the instant case, both signature in the cheque and the issuance of the cheque to the complainant stand Crl.R.P.No.1902 of 2010 **==> picture [7 x 10] intentionally omitted <==** admitted. In **Rangappa v. Mohan** [2010(2) KLT 682 (SC) held that the presumption mandated by 139 of the Act does indeed include the existence of a legally enforceable debt or a liability also. Here, after appreciating the evidence, the courts below concurrently found that the complainant had successfully discharged the initial burden of proving execution and issuance of the cheque I find no kind of illegality or impropriety in the said finding. I do not find any kind of perversity in the appreciation of evidence, from which those findings have been arrived at. The revisional jurisdiction is a parental jurisdiction and unless any kind of perversity in the appreciation of evidence or any kind of illegality or impropriety in the findings arrived at on the basis of the appreciation of evidence is pointed out, this court is not inclined to re-appreciate the entire evidence once again. In **Seenath v. T. Joyson and Another** (2012 (1) KLD 43) this Court held that where the evidence of the complainant over the execution of the cheque is found Crl.R.P.No.1902 of 2010 **==> picture [7 x 10] intentionally omitted <==** credible, trustworthy and reliable by the Court, there is no need to seek any corroboration from any independent source to establish the execution and transaction. A challenge has been set up by the accused on those aspects, by itself, does not cause any inhibition in the Court in accepting the testimony of the complainant. 8. Normally, in revision a re-appreciation of evidence is impermissible unless it is shown that the findings arrived at by the inferior Courts could not have formed on the materials placed or it is so perverse and unacceptable. A different view is possible than what was formed by the Inferior Court on the materials is not sufficient to invoke revisional jurisdiction and implement the view of the revisional court if that view is also possible on materials. I find that at all points the Revision Petitioner fails. 9. The learned counsel for the Revision Petitioner prayed for modifying the sentence. The learned counsel submits that the sentence imposed on the Revision Crl.R.P.No.1902 of 2010 **==> picture [13 x 10] intentionally omitted <==** Petitioner is disproportionate with the nature and gravity of the offence and excessive. 10. The Supreme Court, in the decision in **Kaushalya Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in **Vijayan vs. Baby (** 2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 11. In view of the above decisions, I am of the opinion that the sentence imposed on the Revision Petitioner is a little excessive and disproportionate with the nature and gravity of the offence, in a prosecution under Sec.138 of the Crl.R.P.No.1902 of 2010 **==> picture [13 x 9] intentionally omitted <==** Negotiable Instruments Act. 12. In supersession of the modified sentence imposed by the Appellate court, the substantive sentence of simple imprisonment for three months is reduced and modified to simple imprisonment for one day till rising of the court. The rest of the sentence imposed by the Appellate court will sustain as such without any interference. This revision petition is allowed in part accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge.