Babu Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934** ## **Crl.Rev.Pet.No. 2215 of 2012 (B)** **------------------------------AGAINST THE JUDGMENT IN CRA.353/2011 of ADDL.DISTRICT COURT (ADHOC-I), KOZHIKODE DATED 04-05-2012 IN CC.36/2008 of J.M.F.C.-IV,KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **------------------------------------------------------------------------** **BABU VARGHESE, CHAIRMAN AND MANAGING DIRECTOR, VERDANT FITNESS SYSTEMS (P) LTD., KHADEEJA BUILDING, KARIPPAYI ROAD, DEVELOPMENT PLOT (POST), NORTH KALAMASSERI, COCHIN.** **BY ADV. SRI.T.A.SHAJI** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT(S):** **-------------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. PRASHOB, S/O.KANDAKUTTY, PROPRIETOR, FITNESS ZONE, 5/3397, UNITED COMPLEX, BEHIND SILVER PLAZA, I.G.ROAD, CALICUT-673 004.** **BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN R2 BY ADV. SRI.SRINATH GIRISH R2 BY ADV. SRI.E.NARAYANAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB.** ## K. HARILAL, J. == = = = == = = = = == = = = = = == = == CRL.R.P.NO. 2215 of 2012 = = = == = = = == = = = = = == = = = = = = Dated this the 11[th] day of February 2013 ## ORDER The Revision Petitioner is the accused in C.C.No.36/2008 on the files of the Judicial First Class Magistrate-IV, Kozhikode as well as the appellant in Crl.Appeal No.353/2011 of the Addl. District & Sessions Judge, Fast Track (Adhoc-I), Kozhikode. The Revision petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act on a complaint filed by the 2[nd] respondent herein. After trial, the learned Magistrate convicted the Revision Petitioner and sentenced him to undergo simple imprisonment for one day till rising of the court and to pay Rs.1,52,000/- as compensation to the complainant under Section 357(3) of Cr.P.C. In default to undergo simple imprisonment for a further period of two months. Aggrieved by the judgment of conviction and sentence passed by the learned Magistrate, the Revision Petitioner preferred the above Criminal Appeal. The said appeal was partly allowed by CRRP 2215/2012 2 modifying the sentence. The sentence of imprisonment was altered to fine of Rs.2,20,400/- and in default to undergo simple imprisonment for a period of three months. The fine amount, if realized or deposited, shall be given to the complainant as compensation under Section 357(1)Cr.P.C. 2. The allegation against the Revision Petitioner/Accused is that he is running a business in selling fitness equipment at Kalamassery, Cochin. The 2[nd] respondent/ complainant placed orders for fitness equipment for Rs.1,52,000/- and the said amount was paid in advance. Since the accused could not supply the equipment on demand, the accused issued a cheque for Rs.1,52,000/- towards repayment of the said amount. When the cheque was presented for encashment, the same was dishnoured on the reason 'insufficiency of funds'. The complainant caused to issue registered lawyer notice intimating dishonour of the cheque and demanding repayment of the cheque amount. Though notice was returned unclaimed, he further evaded service of notice. The accused has not repaid the amount nor sent any reply. Hence, the complaint filed under Section 138 of the Negotiable Instruments Act. CRRP 2215/2012 3 3. The 2[nd] respondent/complainant was examined as PW1 and Exts.P1 to P6 were marked. No evidence either oral or documentary adduced by the Revision Petitioner. In trial, the Revision Petitioner/Accused contended that the second respondent/complainant wanted to close down the fitness centre, at that time fitness equipments were entrusted to the accused for sale and as security for the payment of amount realised by the sale of the equipments, a blank signed cheque was handed over. The sale price of the equipments given to him were paid in full; even thereafter the blank signed cheque entrusted was misused and the present complaint was filed misusing that cheque. 4. Going by the evidence on record, it could be seen that the signature in the cheque was admitted. The contention that it was issued as a signed blank cheque on a different situation alleged as defence contention. It could be seen that the second respondent has discharged initial burden to establish that the Ext.P1 cheque was drawn in discharge of a legally enforceable debt and the same was duly issued in discharge of that debt. Therefore, he is entitled to get the benefit of presumption under CRRP 2215/2012 4 Sections 118(a) and 139 of the Negotiable Instruments Act. Then the burden is on the Revision Petitioner to rebut the presumption. Absolutely no evidence was adduced by the Revision Petitioner to rebut the presumption. He did not go to mount box so as to substantiate the contention, which he raised during the trial as defence. This is supported by the absence of reply notice. In **Kumar Exports v. Sharma Carpets** ( **2009(1) KLT 197** , this Court held that bare denial is not sufficient to rebut the presumption. Even if that defence contention raised by the Revision Petitioner is taken at its face value, this Court in **Moideen v. Johny [2006 KHC 1055]** held that “when blank cheque is issued by one to another, it gives an authority on the person to whom it is issued, to fill it up at the appropriate stage with the necessary entries regarding the liability and to present it to the bank - the accused cannot be absolved from the liability in the event of dishonour”. In **Vijendar Singh v. Eicher Motors Limited, [2012(1)KLT SN 28(Case No.31)** , the Delhi High court held that “ There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Petitioner has not denied his signatures on the cheques. Once CRRP 2215/2012 5 he has admitted his signatures on the cheque, he cannot escape his liability on the ground that the same has not been filled in by him.” Therefore, the sole contention raised by the Revision Petitioner in the absence of rebuttal evidence does not merit consideration. In **Johnson Scaria v. State of Kerala** [ **2006(4) KLT 290],** this Court held that the admission of signature goes to a long way to prove due execution and possession of the cheque also gives a long way to prove issuance of cheque. 5. In view of the legal position referred above, I find that in the absence of evidence, the presumption is in favour of the complainant under Sections 118(a) and 139 of the Act. Thus there is no irregularity or illegality in the impugned judgment. Having regard to the limited jurisdiction under Sections 397 and 401 of Cr.P.C, I am of the opinion that this Court is not inclined to re-appreciate the entire evidence, which was concurrently confirmed by the courts below unless, any kind of perversity is shown. 6. Regarding the sentence, the learned counsel for the Revision Petitioner contended that the learned Sessions Judge went wrong by enhancing the default sentence without hearing CRRP 2215/2012 6 the Revision Petitioner. The default sentence ordered by the trial court was simple imprisonment for a period of two months. In appeal the sentence is modified to imprisonment for one day till rising of the court is altered to fine of Rs.2,20,400/- and in default, the sentence was enhanced to three months. I have gone through the reasons for enhancing the compensation from Rs.1,52,000/- to Rs.2,20,400/-. In **Alex Mathew v. George John,[2008.KHC 4632]** , this Court held that compensation ordered is not a fine and therefore the absence of any notice before ordering compensation does not vitiate the decision of the lower appellate court. Therefore, the learned Sessions Judge could be fully justified in enhancing the compensation, but the default sentence is seen enhanced without hearing the Revision Petitioner . On that point I am of the opinion that in the absence of challenge against inadequacy of sentence, the enhancement of default sentence without proper notice to the other parties is not just and proper. The counsel for the Revision Petitioner submits that he is unable to pay the compensation forthwith as ordered by the Appellate Court. He is ready and willing to pay the compensation if a reasonable time is given. Considering the CRRP 2215/2012 7 entire circumstances and gravity of the offence, six months time is given for the interest of justice and equity. 7. In the result of the above discussion, this Revision Petition is liable to be dismissed subject to the following terms: - 1) The Revision petitioner shall pay a fine of Rs.2,20,400/(Rupees two lakhs twenty thousand and four hundred only)to the trial court within six months from today and the fine amount, if realized or deposited shall be given to the second respondent/complainant as compensation under Section 357(3) Cr.P.C. - 2) In default, the Revision Petitioner/Accused shall undergo simple imprisonment for a period of three months. - The Crl. Revision Petition is dismissed accordingly. ## **Sd/-** ## **K. HARILAL,JUDGE** ## **ks.** True copy ## P.S. TO JUDGE