C. Premarajan v. State of Kerala and Dr. V.C. Hamsath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937** **Crl.Rev.Pet.No. 2721 of 2011 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRA 835/2008 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 18-05-2011** **AGAINST THE JUDGMENT IN ST 11/2008 of J.M.F.C.-II, VADAKARA DATED 09-09-2008** **--------------------** ## **REVISION PETITIONER/APPLLANT/ACCUSED:** **----------------------** **C.PREMARAJAN, S/O.ANANDAN, AGED 47 YEARS, RESIDING AT CHAMPANTAVIDA HOUSE, PARAL.P.O., KODIYERI AMSOM AND DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS.SRI.R.SURENDRAN SRI.K.SATHYAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** - **----------------------** **1. DR.V.C.HAMSATH, S/O.MUHAMMED HAJI, AGED 48 YEARS, TRIKKOTTOOR AMSOM DESOM, KOYILANDI TALUK, THIKKODI P.O., KOZHIKODE DISTRICT. PIN – 670 308.** ## **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR, SRI.V.S.SREEJITH.** ## **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **B. SUDHEENDRA KUMAR, J. ------------------------------------Crl.R.P.No.2721 of 2011 -------------------------------------Dated this the 4[th] day of March, 2016** ## **O R D E R ~~~~~~~** The accused in S.T.No.11 of 2008 on the files of the Court of the Judicial Magistrate of First Class-II, Vadakara, filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 138 of the N.I Act. 2. Heard. 3. The prosecution allegation can be briefly stated as follows: The revision petitioner borrowed an amount of Rs. 2,30,000/- from the complainant and towards the discharge of the said liability, the revision petitioner issued a cheque. On the basis of the said cheque, S.T.1110 of 1997 was filed by the complainant before the Court of the Judicial Magistrate of First Class, Payyoli, after complying with the legal formalities. ## **Crl.R.P.No.2721 of 2011** ## **-2-** In the said case, the revision petitioner was acquitted by the trial court holding that the cheque was given as a security. Against the said judgment, appeal was filed. While so, the matter was settled between the parties and Ext.P4 cheque was issued by the revision petitioner in favour of the complainant. Because of the settlement, it was submitted before the High Court during the argument of the appeal that the matter was settled and accordingly, Ext.P3 judgment was passed by the High Court. The complainant presented Ext.P4 cheque for encashment. However, the same was dishonoured due to insufficiency of funds in the account of the revision petitioner. Statutory notice was issued on behalf of the complainant which was received by the revision petitioner. However, the revision petitioner did not pay the cheque amount. After complying with the legal formalities, the above complaint was filed. 4. Before the trial court, PW1 and PW2 were examined and Exts.P1 to P13 were marked for the complainant. DW1 was examined and Ext.D1 was marked for **-3-** ## **Crl.R.P.No.2721 of 2011** the revision petitioner. 5. The complainant himself got examined as PW1. PW1 filed affidavit in lieu of his examination-in-chief reiterating the contentions in the complaint. The revision petitioner had different contentions at different stages of the case. During the cross-examination of PW1, the revision petitioner had a contention that he had issued a blank signed cheque in connection with a chitty transaction with the complainant and the said cheque was presented before the bank for encashment without the consent of the revision petitioner and thereafter, the present complainant was filed. The revision petitioner had a further contention during the cross-examination of PW1 that the complainant had filed a civil case on the strength of the cheque issued earlier and since the civil case was dismissed by the court, the complainant mis-utilised the said cheque and filed the present complaint. During the examination of the revision petitioner under Section 313 Cr.P.C., the revision petitioner had a **-4-** ## **Crl.R.P.No.2721 of 2011** contention that Ext.P4 cheque was a cheque issued as a blank signed cheque to a third person and the complainant had managed to obtain the said cheque from the said 3[rd] person and misutilising the said cheque, the present complaint was filed. In Ext.P10 reply sent on behalf of the revision petitioner, the revision petitioner had a contention that the revision petitioner had entrusted the cheque in question as a blank signed cheque with the complainant in connection with another transaction and the said cheque was misutilised by the complainant to file the present complaint, after the dismissal of the earlier complaint, namely, S.T.1119 of 1997. 6. PW1 stated categorically in cross-examination that after 1997, the revision petitioner did not borrow any amount from the complainant. According to the revision petitioner, the chitty transaction was before the year 1997. The sum and substance of the contention of the revision petitioner is that the cheque in question was issued prior to 1997 by the revision petitioner as a security in connection with some other transaction. PW2 was the Bank Manager, who stated that the ## **Crl.R.P.No.2721 of 2011** ## **-5-** cheque book containing Ext.P4 cheque was issued to the revision petitioner from the bank only on 13.8.2003. Thus, it is clear that the above contentions of the the revision petitioner are not founded on factual matrix of the case. In this case, the revision petitioner had taken rival contentions. It is true that the accused is having every right to take rival contentions. But, the accused must be able to prove at least one of the contentions by the yardstick of preponderance of probabilities and possibilities from the materials on record. However, in this case, the revision petitioner could not establish any of his contentions by the yardstick of preponderance of probabilities and possibilities from the materials on record. 7. Ext.D1 is stated to be an agreement executed by the complainant. Ext.D1 contains only three sentence. In Ext.D1, the complainant stated that he had no further grievance in respect of the cheque issued in S.T.1119 of 1997. The learned counsel for the revision petitioner, relying on Ext.D1, argued that if the revision petitioner had any liability ## **Crl.R.P.No.2721 of 2011** ## **-6-** after the execution of Ext.D1, the same would have been shown in Ext.D1 and since the liability was not shown in Ext.D1, it has to be held that the present case set up by the revision petitioner is probable. It is true that Ext.D1 does not mention about Ext.P4 cheque. Ext.D1 does not mention about any detail about the terms of settlement except to the extent that S.T.1110 of 1997 was settled due to the intervention of mediators and the appeal would be withdrawn by the complainant. It was further stated in Ext.D1 that the complainant had no claim in respect of the cheque issued in S.T.1119 of 1997. PW1 stated that Ext.P4 cheque was issued before the execution of Ext.D1. The courts below found that Ext.D1 would only show that the complainant had no claim over the cheque issued in S.T.1119 of 1997. In this juncture, it is very relevant to note Ext.P3 judgment of this Court in Crl.A.No.708 of 2000 dated 7.7.2006. It was submitted by the appellant, who is the complainant herein, before the Court in Crl.A.No.708 of 2000 that the parties had entered into a settlement and on the basis of the said settlement, the revision **-7-** ## **Crl.R.P.No.2721 of 2011** petitioner issued another cheque for the amount due to the appellant and the said cheque was presented for clearance and thereafter, S.T.625 of 2006 was filed before the Judicial First Class Magistrate Court, Vadakara. In the said circumstances, the learned counsel for the appellant therein submitted before the court that he was not pressing the appeal. It is clear from Ext.P3 judgment that the trial court dismissed S.T.1110 of 1997 on the sole reason that the cheque in question was issued as a security. However, the Apex Court in I.C.D.S.Ltd v. Beena Shabeer [2002(3) KLT 218 (SC)] held that a cheque may be issued for discharging the debt in whole or in part, and even if, it is issued as a security for the amount so borrowed, it comes under “other liability” attracting Section 138 of the N.I. Act. In the said circumstances, this Court would have allowed the appeal. However, it was only on the basis of the submission of the learned counsel for the appellant therein that the matter was settled and another cheque was issued, the Court disposed of the appeal, with a direction that the decision in that appeal would not affect the **-8-** ## **Crl.R.P.No.2721 of 2011** right of the appellant in independently prosecuting the matter under Section 138 of the N.I. Act in the present case. Eventhough there was representation for the revision petitioner before the Court in the appeal, no submission was made before the Court by the learned counsel for the revision petitioner against the submission made by the Learned counsel for the appellant therein with regard to the issuance of another cheque towards the settlement of the earlier case. That apart, if the liability under Ext.P4 was not subsisting at the time of executing Ext.D1, the same would have been definitely mentioned in Ext.P10 reply notice sent by the revision petitioner. For the said reasons, the argument advanced by the learned counsel in this regard cannot be accepted. 8. PW1 clearly stated in the cross-examination that the revision petitioner himself wrote everything in Ext.P4 cheque in the presence of PW1. The revision petitioner only vaguely denied the same. The contention of the revision petitioner was that the amount in Ext.P4 was not written by ## **Crl.R.P.No.2721 of 2011** ## **-9-** the him. Having gone through the evidence of PW1, I am fully convinced that the evidence of PW1 with regard to the execution of Ext.P4 cheque is reliable, natural and hence acceptable. 9. Having gone through the relevant inputs, I am fully convinced that the courts below correctly appreciated the evidence and rightly came to the conclusion that the evidence on record would establish that the revision petitioner executed Ext.P4 cheque as contemplated under Section 138 of N.I.Act. I am further satisfied that the courts below correctly found that the prosecution could establish that the revision petitioner committed the offence under section 138 of N.I.Act. In the said circumstances, I find no reason to interfere with the concurrent finding by the courts below that the revision petitioner committed the offence under Section 138 of N.I.Act. 10. As regards the sentence, the learned counsel for the revision petitioner has pleaded for leniency. The amount covered by Ext.P4 cheque is Rupees One lakh. Considering the facts and circumstances of the case, including the amount ## **Crl.R.P.No.2721 of 2011** ## **-10-** covered by Ext.P4 cheque, I am of the view that the sentence awarded by the courts below can be modified and reduced to a fine of Rs.1,00,000/- (Rupees One lakh only) and in default to simple imprisonment for two months under Section 138 of N.I. Act, to meet the ends of justice and accordingly, I order so. If the fine amount is realised, the entire amount shall be given to the complainant under Section 357(1)(b) of the Code. 11. In the result, this Revision Petition stands allowed in part as above. The revision petitioner shall surrender before the trial court on 31.5.2016 to suffer the sentence. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** **ps/5/3/16** **// True Copy //** **PA to Judge**