Baiju P.T. v. Rajappan Nair and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939** ## **Crl.Rev.Pet.No. 2520 of 2003 ( )** **--------------------------------CRL.A.NO. 339/2002 OF ADDITIONAL SESSIONS COURT, KOTTAYAM CC.NO. 1337/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, (MOBILE), KOTTAYAM, CHANGANACHERRY** **-------------** **REVISION PETITIONER/APPELLANT/ACCUSED : ---------------------------------------------------------------------** **BAIJU.P.T., VARIKKATTUVALA PUTHANVEETTIL, MUNDIYAPPALLY KARA, MALLAPPALLY VILLAGE AND TALUK.** **BY ADVS.SRI.G.SUKUMARA MENON SMT.DEEPTHI S.MENON** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT : -------------------------------------------------------------------------** ## **1. RAJAPPAN NAIR,** - **ANAND VEEDU, PUZHAVATHU KARA,** - **CHANGANACHERRY VILLAGE.** ## **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA AT ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.R.P.No.2520 of 2003 ----------------------------------------Dated this the 17[th] day of October, 2017 ## _**O R D E R**_ The revision petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.1337 of 1998 on the file of the Judicial First Class Magistrate Court-II (Mobile), Kottayam, Changanassery, instituted on the basis of a complaint filed by the first respondent herein. 2. The trial court, as per the impugned judgment rendered on 18.7.2002, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for a period of three months. Aggrieved thereby the petitioner had preferred Criminal Appeal No.339 of 2002 before the Sessions Court, Kottayam. The appellate court concerned (Court of the Additional Sessions JudgeKottayam), as per the impugned judgment rendered on 24.6.2003, had dismissed the appeal confirming the conviction and modifying the sentence to undergo simple imprisonment for a period of one month and also to pay compensation of Rs.35,000/- to the complainant under Section 357(3) of the Cr.P.C. and in default, the accused was ordered to undergo simple imprisonment for a period of one month. It is challenging these concurrent verdicts of both the courts below that the : **:2::** Crl.R.P.No.2520/2003 petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 3. Heard Smt.Deepthi S.Menon, learned counsel appearing for the revision petitioner/accused and Sri.Jestin Mathew, learned prosecutor appearing for R2/State. 4. This revision petition has been filed as early as on 30.9.2003. This Court as per the order dated 1.10.2003 has admitted the Criminal Revision Petition and has passed interim order dated 1.10.2003 on Crl.M.A.No.10095 of 2003 in this revision petition directing that the execution of the impugned sentence in this case will stand suspended on the petitioner executing bond for Rs.20,000/- with two solvent sureties each for the like sum to the satisfaction of the trial court and on depositing one half of the cheque amount within one month. Exhibit-P1 dishonoured cheque dated 16.3.1998 is for Rs.50,000/-. The trial court has now furnished report dated 11.10.2017 to the Registry of this Court stating that on verification of the case records, it is seen that the bond has been executed for an amount of Rs.20,000/- by the petitioner on 15.11.2003 as per the interim order passed by this Court. The said report does not disclose that the petitioner has deposited one half of the cheque amount of Rs.50,000/- in compliance with the interim order dated 1.10.2003 passed by this Court. : **:3::** Crl.R.P.No.2520/2003 5. The gist of the case of the complainant is to the effect that in discharge of a liability owed by the accused to the complainant, the revision petitioner/accused had issued Exhibit-P1 cheque dated 16.3.1998 for Rs.50,000/- drawn from his account and payable in favour of the complainant which when presented resulted in dishonour. The complainant, after following the requisite procedural formalities, including issuance of the statutory demand notice, has initiated the above complaint which resulted in the trial. 6. During trial, the complainant has examined himself as PW1 and has marked Exhibits P1 to P8 documents. The defence has adduced oral evidence to DW1 (one Sri.Murali) and has not marked any documents. 7. It has come out in evidence that during the pendency of the complaint, the accused had paid an amount of Rs.15,000/- to the complainant and the claim of the accused was that the said payment was made in the course of the Adalat proceedings and that the entire case has been settled accordingly. However, the specific version of the complainant is to the effect that he had received Rs.15,000/- during the pendency of the complaint from the accused, but that the said amount was only for part payment of the liability and not for settlement of the entire liability. The trial court has imposed substantive sentence of simple imprisonment for three months and has not imposed any : **:4::** Crl.R.P.No.2520/2003 fine/compensation amount whereas the appellate court has modified the sentence by reducing the substantive sentence of three months simple imprisonment to one month simple imprisonment and also by directing the petitioner to pay compensation amount of Rs.35,000/- to the complainant in terms of Section 357(3) of the Cr.P.C. with a default sentence clause of simple imprisonment for one month. The said compensation amount of Rs.35,000/- has been arrived at after deducting the admitted amount of Rs.15,000/- from the total cheque amount of Rs.50,000/-. 8. The Registry has reported that though notice has been ordered by this Court to be served on the first respondent/complainant as early as on 1.10.2003, the petitioner has not cared to even pay process fee for taking out notice to that party. Hence notice could not be served on R1 till date. Even though P.P. has taken notice for R2/State. Therefore, on the sole ground of not curing the defects, this Court could have dismissed the revision petition for non prosecution, as the said conduct of the petitioner is nothing short of grave abuse of process of the court. However, this Court has considered the merits of the matter after hearing the learned counsel appearing for the petitioner and the learned prosecutor appearing for the second respondent/State in this case. 9. The courts below, after carefully evaluating the oral and : **:5::** Crl.R.P.No.2520/2003 documentary evidence adduced by the parties, concurrently found that the revision petitioner has duly executed Exhibit-P1 cheque as contemplated in Section 138 of the Negotiable Instruments Act. The defence case set up by the revision petitioner has also been duly considered and repelled by the courts below. Since there are concurrent findings of facts regarding the conviction of the petitioner, this Court can interfere with the same in this revisional proceedings only if the same is to be vitiated by gross perversity or illegality. No circumstances has been brought to the notice of this Court to vindicate that those concurrent findings of facts rendered by the courts below are in any manner perverse or illegal or improper. Therefore, this Court is not in a position to exercise its revisional powers so as to interfere with the considered findings of fact and conviction rendered against the petitioner. 10. As regards the sentence, it is seen that the appellate court has reduced the substantive sentence from three months to one month simple imprisonment with a direction to pay compensation of Rs.35,000/-. Going by the legal principles well settled by the Apex Court as in _**Damodar S.Prabhu v. Sayed Babalal.H** ._ reported in _**AIR 2010 Supreme Court 1907**_ and _**Kaushalya Devi Massand v. Rookishore**_ reported in _**AIR 2011 Supreme Court 2566**_ , the offence of dishonour of cheque envisaged in Section 138 of the Negotiable : **:6::** Crl.R.P.No.2520/2003 Instruments Act is essentially a civil wrong which has been given criminal overtones by the legislative amendments made by the parliament in the Negotiable Instruments Act and that imposition of fine payable as compensation to the complainant would be sufficient to meet the ends of justice and that the present sentence would ordinarily be avoided, unless there are exceptional and compelling circumstances in that regard. Therefore, in the light of these aspects, this Court is inclined to reduce the substantive sentence of imprisonment for one month to imprisonment till the rising of the court. However, any such reduction should be done in such a manner so as to render due justice to the complainant who has not served with notice in this case. ExhibitP1 cheque for Rs.50,000/- was issued as early as on 16.3.1998. During the pendency of the complaint, the petitioner has paid only Rs.15,000/and the balance amount payable out of the cheque amount is Rs.35,000/-. More than 19½ long years have elapsed after the issuance and dishonour of the cheque. Therefore, the petitioner should pay compensation of at least Rs.70,000/- (which is twice the balance amount due) to the complainant in terms of Section 357(3) of the Cr.P.C. 11. Smt. Deepthi.S.Menon, learned counsel appearing for the petitioner/accused would submit that in case this Court is so inclined to confirm the conviction etc., then the accused may be granted at least six months’ time to pay the compensation amount. Having regard to the : **:7::** Crl.R.P.No.2520/2003 facts and circumstances of this case and taking note of the conduct of the petitioner, this Court is not inclined to grant more than four months’ time. ## 12. Accordingly, the following orders and directions are passed : - _(i) The impugned conviction imposed on the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act will stand confirmed._ - _(ii) The modified substantive sentence of simple imprisonment for one month will stand reduced as imprisonment till the rising of the court. In supersession of the orders passed by the courts below, it is ordered that the petitioner shall pay a compensation amount of Rs.70,000/- to the complainant in terms of Section 357(3) of the Cr.P.C. On default on the part of the petitioner to pay the said amount, he will have to suffer simple for a period of two months._ - _(iii) In case the petitioner has deposited any amount before the trial court in relation to this case, then the said amount shall be forthwith released by the trial court to the complainant after issuing him notice or intimation in that regard. In that eventuality such amount so deposited could be deducted from the total compensation amount of Rs.70,000/- and the petitioner need to pay only the balance amount in that regard._ - _(iv) The petitioner is given four months’ time from 15.10.2017 to pay the said due compensation amount. The petitioner shall personally appear before the trial court at 11 A.M. on any day on or before 17.2.2018 to receive the sentence of imprisonment till the rising of the court and to pay the due compensation_ : **:8::** Crl.R.P.No.2520/2003 ## _amount in the manner indicated herein above._ - _(v) Until 17.2.2018, all further coersive steps for execution of the impugned sentence in this case will stand deferred._ The Registry shall forward copies of this order to the first respondent/complainant as well as the trial court. With these observations and directions, the Criminal Revision Petition will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** csl