Baby R. v. Simon Cherian and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.Rev.Pet.No. 729 of 2011() ----------------------------- CRA.17/2010 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA CC.239/2009 of THE JFCM-II, ADOOR. .................... ## REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------- BABY.R., W/O.LALJI, VRINDALAYAM, (MUKALUVILAPADINJATTATHIL), PANNIVIZHAMURI, ADOOR P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.ANCHAL C.VIJAYAN ## RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. SIMON CHERIAN, SUNSHINE, KOTTANALLURMURI, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## R2 BY P.P. SMT. REKHA C, NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **-----------------------------------------Crl.R.P. No. 729 of 2011 ----------------------------------------** Dated the 30[th] Day of March, 2011 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused issued cheque for Rs.7,30,000/- connected with the conduct of gas agency run by the late husband of the revision petitioner and the revision petitioner herself and when the said cheque presented for encashment, the same was dishonoured as there was no sufficient fund in the account maintained by the accused 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-I, Adoor wherein cognizance was taken under section 138 of the N.I.Act against the revision petitioner/accused and instituted C.C.No.100/2007 and subsequently, the case was withdrawn from that court and made over to the Judicial First Class CRL.R.P.729/11 2 Magistrate Court-II, Adoor wherein the case was renumbered as C.C.No.239/2009. During the trial of the above case, the complainant himself was examined as PW1 and produced Exts.P1 to P7. No evidence, either oral or documentary was produced from the side of the defence. Based upon the available materials and evidence, the trial court has found that the cheque in question, i.e. Ext.P1 was issued by the revision petitioner towards the discharge of the liability that due to the complainant and thereby found that the 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 one year and to pay compensation of Rs.7,30,000/-(Rupees Seven lakhs thirty thousand only) to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of one month. 3. Aggrieved by the above order of conviction and sentence and the findings of the trial court, though the revision petitioner-accused preferred an appeal, by judgment dated 21.12.2010 in Crl.A.No.17/2010, the court of Addl. District & CRL.R.P.729/11 3 Sessions Judge, (Fast Track-III), Pathanamthitta, dismissed the appeal confirming the conviction and sentence imposed by the trial court. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. I have heard sri Anchal C.Vijayan, the learned counsel appearing for the revision petitioner and also perused the judgments of the trial court as well as the appellate court. 5. The learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the execution and issuance of the cheque and also the passing of consideration. According to the learned counsel, the trial court as well as the appellate court committed mistakes in not considering the above essential requirement for a conviction of the revision petitioner under section 138 of the N.I.Act. In order to substantiate the above contention, the learned counsel took me through the chief affidavit in lieu of chief examination and the cross examination of PW1, the complainant, and also through Ext.P7 document. From the cross examination, according to the learned counsel, it can be seen that the complainant is not in a CRL.R.P.729/11 4 position to say the exact date of the availing of the loan amount and the actual amount allegedly borrowed by the accused. It is also the further submission of the learned counsel that though the complainant has relied upon an agreement on the basis of which the complainant has also become a party to the business conducted by the revision petitioner a well as her husband, no such document is produced and therefore according to the learned counsel, the transaction claimed by the complainant is also not proved. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the cheque in question was given by the husband of the revision petitioner as a security in the transaction between the husband of the revision petitioner and the complainant and the revision petitioner had had never executed and issued the cheque in favour of the complainant. 6. I am unable to sustain the above contention in the light of the facts and circumstances involved in the case, especially, in view of the evidence and materials referred to by the trial court as well as the appellate court. It is true, the CRL.R.P.729/11 5 revision petitioner denied the execution and issuance of Ext.P1 cheque. It is also true that the complainant has not produced the documents which allegedly executed between the parties for the purpose of conducting the gas agency. But in the above chief affidavit filed in lieu of examination, as correctly found by the trial court as well as the appellate court, the complainant has stated regarding the entire facts and circumstances that led to the issuance of the cheque in question by the revision petitioner. It is an admitted fact, at least to the extent that the husband of the revision petitioner and herself were conducting gas agency. But when PW1 was examined , he had categorically stated that when the husband of the revision petitioner and herself were in need of money, they approached the complainant and obtained loan from him. In support of the above claim, the complainant had produced Ext.P1 cheque from his possession and submitted that the said cheque is executed and issued by the accused which bearing the signature of herself and the cheque pertains to the account maintained by the revision petitioner. If that be so, according to me, the trial court as well as the CRL.R.P.729/11 6 appellate court are fully justified in holding that the complainant has established the case against the revision petitioner and therefore, he is entitled to get presumption under section 139 of the Act. 7. Therefore, the next question to be considered is whether the revision petitioner/accused has succeeded in rebutting the presumption. The Apex Court time and again has held that mere denial of execution and issuance of cheque is not sufficient to discharge the burden of rebutting the presumption. In the present case, it can be seen that as indicated earlier, the complainant who was examined as PW1 has categorically deposed and explained as to how Ext.P1 cheque reached in the possession of the complainant. But there is no consistent case for the defnce to counter the above claim. During the cross examination, it appears that, at one stage, the defence is to the effect that the cheque is given as security for the transaction between the complainant as well as the husband of the revision petitioner. Subsequently, the defence was changed to the effect that the cheque in question was entrusted with the complainant by the husband of CRL.R.P.729/11 7 the revision petitioner without her consent and knowledge and she did not execute the cheque and issued the same. The substantial change in the defence itself is sufficient to hold that the defence has no consistent case. Of course, in a criminal trial, the accused is entitled to take divergent and inconsistent defence but it is for the accused to substantiate such defence. But in the present case, the inconsistent defence itself is sufficient to show its impropriety and falsehood. Moreover, Ext.P7 is a document which bears the signature of the revision petitioner and also the signature of late husband of the revision petitioner. From Ext.P7 it is crystal clear that, the cheque in question was executed and issued by the revision petitioner, along with her husband and thus it came into the possession of the complainant. In the light of the above facts and circumstances, I am of the view that the findings of the trial court as well as the appellate court regarding the guilt of the revision petitioner is perfectly justified and legal and therefore, I confirm the conviction which concurrently recorded by the courts below. 8. As this Court is not inclined to interfere with the order CRL.R.P.729/11 8 of conviction, the learned counsel submitted that a lenient view may be taken in the matter of sentence since, the sentence already imposed by the trial court and confirmed by the appellate court is highly exorbitant and unreasonable. I find some force in the above submission of the learned counsel and the same requires serious consideration. 9. In this juncture it is relevant to note that the cheque in question is dated 27.12.2006, that too for an amount of Rs.7,30,000/-. The trial court as well as the appellate court has found that the said amount is due to the complainant and I have already approved the said findings. In the present case, though the appellate court disposed of the appeal by judgment dated 21.12.2010, so far, no amount is seen paid to the complainant. It is equally important to note that the revision petitioner, who is a lady, was conducting gas agency along with her late husband and the husband expired during the pendency of the case in the trial court. The counsel for the petitioner submitted that the petitioner is hailing from a poor family and now she is a widow. In the light of the above mitigating circumstances and facts, I am of the view that the CRL.R.P.729/11 9 sentence of imprisonment ordered against the revision petitioner requires reconsideration. It is also relevant to note that 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, while granting some time to pay the compensation and also while interfering with the order of sentence, the interest of the complainant has also to be protected. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act recorded by the courts below. Accordingly, the petitioner being a lady, and other circumstances indicated above, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is set aside. As the sentence is set aside, the direction to pay compensation is also set aside and the revision petitioner is sentenced to pay a fine of **Rs.8,00,000/-** (Rupees Eight lakhs only) within three months from today and, in default, she is directed to undergo simple imprisonment for a period of 3 months. Accordingly the CRL.R.P.729/11 10 revision petitioner is directed to deposit the fine amount in the trial court on or before **30[th] June, 2011.** If there is any default on the part of the revision petitioner in depositing the fine amount in the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure her presence and to execute the sentence and for realisation of the amount. On realisation of the fine amount, a sum of **Rs.7,95,000/-** (Rs.seven lakhs ninety five thousand only) shall be paid to the complainant under section 357(1)(b) Cr.P.C and the remaining amount of **Rs.5000/** -(Rs.Five thousand only) shall be deposited in the State Ex chequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 30[th] June, 2011. This Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE** kvm/- CRL.R.P.729/11 11 kvm/-