Bijulal v. State of Kerala and Pradeep P.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 2204 of 2013 () --------------------------------** **Crl.A 210/2011 of ADDL. SESSIONS JUDGE, ALAPPUZHA, DATED 24-09-2013** **CC 917/2008 of JUDICIAL FIRST CLASS MAGISTRATE -I, CHERTHALA DATED 05-05-2011** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-------------------------------------------** **BIJULAL, AGED 40 YEARS S/O.NARAYANAN, VYKATHUSSERIL, PANAVALLY.P.O CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.JACKSON MATHEW SRI.P.ANUROOP** **COMPLAINANT(S)/STATE AND RESPONDENT : ------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. PRADEEP.P.S, S/O.SURENDRAN, KALARITHARA VEEDU, PATTANAKAD.P.O CHERTHALA, ALAPPUZHA DISTRICT, PIN-688531.** **R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. 2204 of 2013** ## **APPENDIX** ## **PETITIONER’S ANNEXURES:** - **A1 : ATTESTED COPY OF CHEQUE BEARING NO.440841 DATED 21/04/2008 DRAWN ON STATE BANK OF TRAVANCORE.** - **A2 : ATTESTED COPY OF DISHONOUR MEMO.** - **A3 : ATTESTED COPY OF INTIMATION MEMO DATED 07/05/2008.** - **A4 : ATTESTED COPY OF POSTAL RECEIPT DATED 15/05/2008.** - **A5 : ATTESTED COPY OF OFFICE COPY OF LAWYER’S NOTICE DATED 15/05/2008.** - **A6 : ATTESTED COPY OF UNCLAIMED COVER.** ## **RESPONDENTS’S ANNEXURES : NIL** ## **//True copy//** **P.A to Judge** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.2204 of 2013** = = = = = = = = = = = = = = = Dated this the 17[th] day of December, 2013 ## **O R D E R** The revision petitioner is the accused in C.C No.917/2008 on the files of the Judicial First Class Magistrate Court-I, Cherthala. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as 'N.I. Act' for short) on a complaint filed by the 2[nd] respondent herein. After trial, the learned Magistrate, found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for a period of one year and to pay compensation of 1,90,000/- to the complainant under₹ Section 357 (3) of the Code of Criminal Procedure. In default of payment of compensation, the accused shall undergo simple imprisonment for a further period of six months. Crl.R.P.No.2204 of 2013 2 2. Feeling aggrieved, though the revision petitioner had preferred Crl.A No.210/2011, after re-appreciating the evidence on record, the appellate court also confirmed the conviction and modified the sentence imposed on the revision petitioner. The substantive sentence of simple imprisonment for a period of one year was reduced to simple imprisonment for one month and maintained the rest of the sentence as such, without any interference. This revision petition is filed challenging the concurrent findings of the conviction and modified sentence. 3. The prosecution case in brief is that in discharge of a legally enforceable debt, the petitioner had issued a cheque for 1,90,000/- dated 21.4.2008 in favour of the 2₹ nd respondent/complainant herein. When the complainant presented the cheque for encashment, the same was dishonoured for want of sufficient funds. Though he caused to issue a lawyer's notice, the accused did not pay the cheque amount. Thus, the accused has committed the ## Crl.R.P.No.2204 of 2013 **==> picture [7 x 10] intentionally omitted <==** offence punishable under Sec.138 of the Negotiable Instruments Act. 4. The learned counsel for the revision petitioner submits that the statutory notice provided under Sec.138(b) of the N.I.Act was not served on him and the complaint was filed two days after the prescribed period as provided under Sec.138(c) and 142(b) of the N.I.Act. It is also contended that the court below miserably failed to appreciate the defence contention in its correct perspective and wrongly found that the accused has not rebutted the presumption under Sec.138 of the N.I.Act. So also, the execution of the cheque was also not proved beyond doubt. 5. The short question that arises for consideration in this revision petition is whether there is any illegality or impropriety in the impugned judgment under challenge. Going by the judgment, it is seen that to prove the execution and issuance of the cheque, the complainant was examined as PW1 and Exts.P1 to P6 were marked. One witness was examined as DW1 and no documentary Crl.R.P.No.2204 of 2013 **==> picture [7 x 9] intentionally omitted <==** evidence was produced by the accused in defence. After appreciating the evidence of the complainant as PW1, the courts below concurrently found that the complainant has successfully discharged the initial burden of proving the execution and issuance of the cheque and the presumption under Sec.118(a) and 139 of the N.I.Act would stand in favour of the complainant. I find no reason to discard the above finding regarding the execution and issuance of the cheque. 6. Coming to the rebuttal evidence, the specific contention raised by the accused in defence is that he has borrowed 25,000/- from one Suganthappan, who is the₹ eldest brother of the complainant and at that time he has issued a blank signed cheque to the said Suganthappan. But, later, he has given back 15,000/- to the complainant₹ on 25/02/2002 and thereafter he has paid the entire amount to the complainant, instead of giving it to Suganthappan, to whom he owed 25,000/-₹ 7. It is also the case of the accused that he was Crl.R.P.No.2204 of 2013 **==> picture [7 x 10] intentionally omitted <==** conducting a toddy shop along with the complainant and when the licence expired, the entire account outstanding between himself and the complainant was settled down. At that time, he requested the blank cheque which was given to the complainant but he has not returned the cheque. Now, at the instance of the said Suganthappan, the complainant has filed this false complaint against the accused by misusing the blank signed cheque admittedly given to Suganthappan after borrowing 25,000/-. But, the₹ accused has not explained, in evidence, how Ext.P1 cheque came into possession of the complainant. 8. When the complainant was examined, he is flatly denied the contentions raised in defence by the accused. One independent witness was examined on the side of the accused as DW1. He deposed that the accused has executed the cheque in favour of Suganthappan and received 25,000/- and thereafter, he has paid of the entire₹ amount to the complainant. But, when he was crossexamined, he deposed that he has not gone to the residence Crl.R.P.No.2204 of 2013 6 of the complainant on 20[th] March, 2008, the date on which the alleged amount was borrowed and he did not know whether the accused has borrowed 1,90,000/- from the₹ complainant and he has not seen the accused paying back the amount. After evaluating the evidence of DW1, the court below found that the evidence of DW1 is not reliable and the same is not sufficient to rebut the presumption under Sec.139 and 118 of the N.I.Act which stood in favour of the complainant. I do not find any kind of perversity in the appreciation of evidence of DW1. It follows that the accused miserably failed to rebut the presumption and thereby the presumption would stand unshaken in favour of the complainant. 9. The learned counsel for the revision petitioner submits that the complaint was instituted after the period of limitation prescribed under Sec.142(b) and 138(c) of the N.I.Act. But, the endorsement in Ext.P6 returned cover shows that the accused was noticed on 16/05/2008 and thereafter on 17/05/2008. According to the accused, the Crl.R.P.No.2204 of 2013 **==> picture [7 x 10] intentionally omitted <==** date of receipt of the notice should have been reckoned from 17/05/2008. But, going by Ext.P6 unclaimed cover, it could be seen that the postal article was tendered directly to the accused on 16/05/2008 and 17/05/2008. But, he was absent on these days. Therefore, definitely, the postman would have issued notice intimating them to receive the article from the post office within seven days. If that be so, the postal article could have been send back only after the period of seven days also. The endorsement in the cover shows that the cover received back on 02/06/2008 only. Therefore, it could be seen that the complaint was filed within the period as provided under Sec.142(b) and 138(c) of the Cr.P.C. Therefore, there is no illegality or infraction in the statutory compliance required to maintain the complaint under Sec.138 of the N.I.Act. Consequently, I confirm the conviction entered on the accused. 10. Coming to the sentence, the learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner is disproportionate with the Crl.R.P.No.2204 of 2013 **==> picture [7 x 10] intentionally omitted <==** nature and gravity of the offence. It is excessive and harsh. 11. 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. 12. In view of the above decisions laid down by the Supreme Court, I find that the sentence imposed on the revision petitioner is disproportionate with the nature and gravity of the offence to some extent. Consequently, I am inclined to reduce the substantive sentence of imprisonment imposed on the revision petitioner. Crl.R.P.No.2204 of 2013 **==> picture [7 x 10] intentionally omitted <==** 13. In supersession of the sentence imposed by the trial court and modified by the appellate court, the revision petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay a compensation of ₹ 1,90,000/- to the complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, he shall undergo simple imprisonment for six months. This revision petition is allowed in part. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge