C V Berlin v. T A George and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **Crl.Rev.Pet.No.953 OF 2019** **AGAINST THE JUDGMENT IN CRA 69/2018 DATED 17-06-2019 OF ADDITIONAL SESSIONS JUDGE-V, ERNAKULAM** **AGAINST THE JUDGMENT IN CC 1407/2015 DATED 06-02-2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-(NI ACT CASES, ERNAKULAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **C V BERLIN,S/O VARGHESE, AGED 45 YEARS, THALIYATH PARAMBU, DEVASWOMPADAM ROAD, VALAVU, CHETTIBHAGOM, VARAPUZHA P.O., PIN 683 517.** **BY ADVS. SRI.T.K.AJITHKUMAR (VALATH) SMT.T.MANASY** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **1. T A GEORGE, S/O.AUGUSTINE, AGED 62 YEARS, THUNDIPARAMBIL HOUSE, MOOLAMPILLY.P.O, PIN 682 027.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA** **R1 BY ADV. SRI.T.K.SASINDRAN SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-12-2019, THE COURT ON 16-12-2019 PASSED THE FOLLOWING:** Crl.R.P.No.953/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.953 of 2019 -----------------------------------------------Dated this the 16[th] day of December, 2019 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.1407 of 2015 on the file of the Court of the Judicial First Class Magistrate (N.I.Act Cases), Ernakulam. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three months and also to pay a fine of Rs.70,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. The trial court also directed that, if the fine amount was realised, it shall be given to the complainant as compensation. Crl.R.P.No.953/2019 3 3. The petitioner filed Crl.A.No.69/2018 in the Court of Session, Ernakulam challenging the conviction entered against and the sentence imposed on him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 4. Heard learned counsel for the petitioner and also the first respondent. 5. The case of the complainant is as follows: The complainant and the accused were neighbours and friends. In February, 2012, the accused borrowed an amount of Rs.70,000/from the complainant. When the complainant made repeated demands for repayment of the amount, the accused issued a cheque dated 27.01.2014 for Rs.70,000/- to him in discharge of the debt. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a Crl.R.P.No.953/2019 4 lawyer notice to the accused in his residential as well as official address. The notice sent to the accused in the residential address was served on him. The accused did not send any reply. He did not pay the amount of the cheque. 6. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P7 documents were marked on his side. No evidence was adduced by the accused. 7. When examined as PW1, the complainant gave evidence in examination-in-chief that he gave an amount of Rs.70,000/- to the accused as loan in February, 2012. PW1 has also given evidence to the effect that, on repeated demands made by him, in December 2013, the accused gave him a post-dated cheque for Rs.70,000/- which was dated 27.01.2014 in discharge of the liability. 8. PW1 has stated on cross-examination that the accused was his neighbour and he had advanced loan to the accused on prior occasions also and the accused had then repaid the amount. He has also stated that the handwriting of the entries in the cheque belongs to him. He would say that he filled up the Crl.R.P.No.953/2019 5 cheque with the consent of the accused. 9. No suggestion was made to PW1 in the crossexamination that the cheque does not bear the signature of the accused. No suggestion was also made to PW1 in the crossexamination that the complainant has forged the signature of the accused in the cheque. The complainant admitted in crossexamination that he filled up the cheque with the consent of the accused. It may be noted that the complainant has got a specific case that it was a post-dated cheque given to him by the accused. Therefore, it is probable that before the cheque was presented in the bank, the complainant filled up the cheque with the consent of the accused. 10. Now, even if it is accepted that the accused had given only a signed blank post-dated cheque to the complainant, it does not in any way affect the case of the complainant. A person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have Crl.R.P.No.953/2019 6 been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 of the Act would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt (See **Bir Singh v. Mukesh Kumar : AIR 2019 SC 2446** ). 11. The evidence of PW1 proves the execution of the cheque by the accused and delivery of it to him by the accused in discharge of the debt. Then, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. Crl.R.P.No.953/2019 7 12. The plea of the accused was that, on an earlier occasion, he had borrowed Rs.10,000/- from the complainant and then he had given a signed blank cheque to the complainant and he repaid the amount of Rs.10,000/- to the complainant but he did not get back the cheque. It is alleged by the accused that the complainant misused the aforesaid cheque and filed the case. 13. PW1 has stated on cross-examination that the accused had earlier borrowed Rs.10,000/- from him and the accused repaid that amount. However, PW1 denied the suggestion made to him that the accused had given him a signed blank cheque at the time of borrowing an amount of Rs.10,000/-. No evidence was adduced by the accused to prove the plea that he had given a signed blank cheque to the complainant at the time of borrowing the amount of Rs.10,000/- from him. Moreover, if he had given such a signed blank cheque to the complainant at the time of borrowing an amount of Rs.10,000/-, it is not explained by the accused why he did not get back the cheque when he repaid the amount of Rs.10,000/-. Crl.R.P.No.953/2019 8 14. Learned counsel for the petitioner would point out a discrepancy in the evidence of PW1. In examination-in-chief, PW1 gave evidence that he gave the amount to the accused in February, 2012 but in cross-examination, PW1 would say that he gave the amount on 13.12.2013. This discrepancy in the evidence of PW1 is not sufficient to reject his case in toto. It is very evident that PW1 committed a mistake in stating the date of advancing the amount and the date on which the accused gave the cheque. There is a specific plea made by the complainant that it was in December, 2013 that the accused gave him a post-dated cheque in discharge of the debt. Therefore, it is evident that the date mentioned by PW1 above as 13.12.2013 was the date on which the accused gave the cheque to him. 15. Innocuous incongruities in the evidence of the complainant are not sufficient to disbelieve the case of the complainant in the absence of any evidence adduced by the accused to rebut the presumption under Section 139 of the Act (See **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876** and **Uttam Ram v. Devinder Singh : JT 2019 (11)** Crl.R.P.No.953/2019 9 ## **SC 339** ). 16. The accused had received the statutory notice from the complainant. He did not send any reply to the statutory notice. If as a matter of fact, no amount was due from him to the complainant and if he had given a signed blank cheque to the complainant at the time of borrowing the amount of Rs.10,000/and if the complainant had misused the aforesaid cheque, the accused would have definitely sent a reply to the statutory notice. The fact, that the lawyer notice sent to the accused by the complainant did not evoke any response from the accused, is a crucial circumstance lending credibility to the case set up by the complainant. 17. In the aforesaid circumstances, I find no illegality or impropriety or perversity in the appreciation of evidence by the courts below. There are no sufficient grounds to interfere with the findings of the courts below that the accused issued the cheque to the complainant in discharge of the amount of Rs.70,000/- borrowed by him from the complainant. Conviction of the accused for the offence under Section 138 of the Act is Crl.R.P.No.953/2019 10 only to be confirmed. 18. The trial court imposed a sentence of simple imprisonment for a period of three months and a fine of Rs.70,000/- on the accused. 19. An offence under Section 138 of the Act is almost in the nature of a civil wrong which has been given criminal overtones. Substantive sentence of imprisonment shall not be imposed on the accused in such a case except in exceptional cases. At the same time, direction to pay compensation to the complainant by way of restitution in regard to the loss on account of dishonour of the cheque, shall be made. It would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. ## 20. In **Vijayan v. Baby** ( **AIR 2012 SC 528** ), the Apex Court has held as follows: _"The Courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon_ Crl.R.P.No.953/2019 11 _at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate."_ 21. In the instant case, the cheque is dated 27.01.2014. Nearly six years would be over now. Interest at the rate of 9% on the cheque amount of Rs.70,000/- for a period of six years would come to Rs.37,800/-. Then the total amount would come to Rs.1,07,800/. However, taking a lenient view, I find that it is proper to set aside the substantive sentence of imprisonment imposed on the petitioner by the courts below and to impose a sentence of fine of Rs.90,000/- on him and award that amount as compensation to the complainant. 21. Consequently, the revision petition is allowed in part. Conviction of the petitioner/accused for the offence under Section 138 of the Act is confirmed. The sentence of simple Crl.R.P.No.953/2019 12 imprisonment for a period of three months imposed on the petitioner/accused by the trial court, which stands confirmed by the appellate court, is set aside. The petitioner/accused is sentenced to pay a fine of Rs.90,000/- (Rupees ninety thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of one month. If the fine amount is realised, it shall be given to the complainant as compensation. The petitioner is granted a period of three months from today to deposit the fine amount in the trial court. Amount, if any, already deposited by the petitioner shall be adjusted towards the fine amount. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/13/12/2019 True Copy PS to Judge