C. Girish v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2015-03-18
Court Decision / Holding: Revision petition dismissed; time granted to pay until 17.08.2015 to pay the amount; execution of sentence to be kept in abeyance pending payment.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

C. Girish

Respondents

State of Kerala represented by Public Prosecutor
M.S. Sasi

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. Ananda

Counsels for Respondents

• Public Prosecutor SMT. Seena Ramakrishnan

Case Synopsis & Summary

The High Court of Kerala, in a criminal revision petition filed by the accused C. Girish, examines a conviction under Section 138 of the Negotiable Instruments Act (N.I. Act) arising from a private complaint in CC 80/2010 before the Judicial First Class Magistrate, Palakkad. The complainant alleged that the accused borrowed ₹2,00,000 and issued a cheque dated 29.07.2009, which bounced for insufficient funds, despite a prior notice. The accused contended that he had borrowed only ₹15,000 and furnished four blank signed cheques as security, one of which was misused, and that the complaint was filed erroneously. The trial court convicted under s.138 NI Act and sentenced six months’ simple imprisonment plus a fine of ₹2,00,000 with compensation, and an additional default sentence. On appeal, the Sessions Court (Second Additional) modified the sentence to imprisonment till rising of the court and increased the fine to ₹2,01,000 with a ₹2,00,000 compensation payable out of the fine under Cr.P.C. s.357(1)(b). The High Court, while admitting the revision at the stage of admission, notes the defence about misused cheques and the lack of evidence rebutting the presumption that the cheque was issued for consideration. Relying on a Supreme Court decision cited in the appeal, the court finds the appellate leniency not excessive and grants time to pay until 17.08.2015, keeping execution in abeyance, and dismisses the revision petition.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 357(3) of the Code of Criminal ProcedureSection 357(1)(b) of the Code of Criminal Procedure

Legal Doctrines & Maxims

Presumption of liability under the Negotiable Instruments Act upon issue of a cheque for consideration, not rebutted by evidence unless properly shown.
Appellate court may rely on established precedents (e.g., Supreme Court decisions) to determine the proportionate quantum of leniency within statutory limits.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the accused had borrowed only ₹15,000 and provided blank signed cheques as security, some of which were misused. The defence argues that the absence of specific evidence to rebut the asserted misappropriation and transactions indicates no liability under s.138. The plea seeks leniency and time to pay, highlighting financial constraints and the security cheques as collateral rather than fresh liability.

Contentions of Respondents

The State contends that the trial and appellate courts rightly convicted under s.138 NI Act, supported by the statutory presumption and the complainant’s evidence, including the cheque and dishonour memo. The respondents argue that the appellate leniency should not undermine the conviction, and the sentence aligns with established jurisprudence, with compensation and appropriate default terms.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Somanath Sarkar v. Utpal Basu Mallick	2013(4) KLT 350 (S.C.)	Positive	The High Court notes that the appellate court relied on this Supreme Court decision to justify leniency in the sentence and did not view it as excessive. It accepts the principle as supportive authority for moderation in sentencing.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 18TH DAY OF MARCH 2015/27TH PHALGUNA, 1936** **Crl.Rev.Pet.No. 360 of 2015 ()** **--------------------------------------AGAINST THE JUDGMENT IN Crl.APPEAL 279/2013 of II ADDL. SESSIONS COURT, PALAKKAD, DATED 14.01.2015 & AGAINST THE JUDGMENT IN CC 80/2010 of J.M.F.C.- III, PALAKKAD, DATED 12.08.2013** ## **REVISION PETITIONER(S):** **------------------------------------** **C.GIRISH, AGED 35 YEARS, S/O. CHERUKUTTY, PUTHENPALLAM HOUSE, VAKKANICHALLA, KUTTIPPALLAM, PALAKKAD.** ## **BY ADV. SRI. K.ANAND** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031.** **2. M.S. SASI, S/O. SUKUMARAN, AGED 53 YEARS, KAVUNGAL HOUSE, KINASSERY, PALAKKAD-678 103.** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18-03-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.360 of 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 18[th] day of March, 2015 ## **O R D E R** Accused in C.C.No.80/2010 on the file of the Judicial First Class Magistrate Court-III, Palakkad, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant herein, against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 2,00,000/-₹ and issued Ext.P1 cheque dated 29.07.2009 in discharge of that liability, which when presented was dishonoured for the reason 'funds insufficient', evidenced by Ext.P2 dishonour memo. Complainant issued Ext.P3 notice vide Ext.P3(a) postal receipt and the same was received by the Crl.R.P. No.360 of 2015 2 revision petitioner evidenced by Ext.P4 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P4 and P3(a) were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had borrowed a sum of 15,000/- and as a security₹ for the same, he had given four blank signed cheques, one of which was mis-used and the present complaint was filed. No defence evidence was adduced on his side to prove his case. Crl.R.P. No.360 of 2015 3 4. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Negotiable Instruments Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount of 2,00,000/-, as compensation to the₹ complainant, in default to undergo simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, he filed Criminal Appeal No.279/2013 before the Sessions Court, Palakkad and it was made over to the Second Additional Sessions Court, Palakkad, for disposal and the learned Additional Sessions Judge allowed the appeal in part, confirming the order of conviction, but modified the sentence to imprisonment till rising of court and also to pay a fine of ₹2,01,000/-, in default to undergo, simple imprisonment for three months and directed to pay an amount of 2,00,000/- as compensation to the complainant,₹ out of the fine amount under Section 357(1)(b) of the Code 4 Crl.R.P. No.360 of 2015 of Criminal Procedure and time was granted till 11.02.2014 to pay the amount. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below. 5. Considering the scope of enquiry and nature of defence taken, this court felt that the revision can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and the learned Public Prosecutor dispensing with notice to the second respondent. 6. The counsel for the revision petitioner submitted that, even on earlier occasions, there were financial transactions between them and the cheques given as security were not returned and one of the cheque given was mis-used and the present complaint was filed. These aspects were not properly appreciated by the court below. He had further submitted that, if this court is not inclined to interfere with the order of conviction and sentnece, he prayed for six months time to pay the amount. Public Crl.R.P. No.360 of 2015 5 Prosecutor supported the concurrent findings of the court below. 7. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 2,00,000/-₹ and issued Ext.P1 cheque in discharge of that liability, which when presented was dishonoured and in spite of notice issued, the revision petitioner had not paid the amount. 8. The case of the revision petitioner was that, he had borrowed only an amount of 15,000/- and blank₹ signed cheques given as security was mis-used. Except a bare suggestion given, there is no other evidence adduced on the side of the revision petitioner to prove this fact. Further he did not send any reply to the notice issued as well. The revision petitioner had a case that, he was having regular financial transactions with the complainant and he used to borrow amount for his business purpose. That shows that, the complainant is having the financial capacity to pay the amount as well. So under the circumstances and 6 Crl.R.P. No.360 of 2015 in the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption, courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act and the concurrent findings of the court below on this aspect do not call for any interference. 9. As regards the sentence is concerned, the court below had sentenced the revision petitioner to undergo simple imprisonment for six months and also to pay a compensation of 2,00,000/-, to the complainant, in₹ default to undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. But the appellate court had relied on the decision reported in **Somanath Sarkar v. Utpal Basu Mallick [2013(4) KLT 350 (S.C.)]** , reduced the substantive sentence of imprisonment till rising of the court and fixed the fine as ₹2,01,000/-, with default sentence of three months and directed to pay 2,00,000/- out of the fine amount as₹ compensation to the complainant under Section 357(1)(b) of Crl.R.P. No.360 of 2015 **==> picture [8 x 9] intentionally omitted <==** the Code of Criminal Procedure. So maximum leniency as shown by the appellate court in fixing the fine amount and also imposing substantive sentence. It cannot be said to be excessive or harsh requiring interference at the hands of this court. However, considering the amount involved, this court feels that, the request of the revision petitioner can be considered and time can be granted till 17.08.2015 to pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- - **K. Ramakrishnan, Judge** **==> picture [70 x 10] intentionally omitted <==** P.A. to Judge ss