Chandran v. B.P. Agarwal and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 17TH DAY OF NOVEMBER 2014/26TH KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 678 of 2004 (D)** **-------------------------------CRA 157/2003 of ADDL. SESSIONS COURT, ERNAKULAM CC 228/1999 of CHIEF JUDICIAL MAGISTRATE, ERNAKULAM** **-------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **------------------------------------------------------------------** **CHANDRAN,PROPRIETOR, M/S VENKATESWARA ALUMINIUM FABRICATORS, THYCAUD, TRIVANDRUM.** **BY ADVS.SRI.AJITH KRISHNAN SRI.MOHAMMED AL RAPHI** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT :** **--------------------------------------------------------------------** ## **1. B.P.AGARWAL,PROPRIETOR,** **SUPER ALUMINIUM COMPANY, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER A.R.JAYACHANDRAN.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PRSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **K. RAMAKRISHNAN,J -------------------------------Crl.R.P. No.678 of 2004 -------------------------------Dated this the 17[th ] day of November 2014** ## **O R D E R** Accused C.C. No.228 of 1999 on the file of the Chief Judicial Magistrate Court, Ernakulam is the revision petitioner herein. The case was taken on file on the basis of the private complaint filed by the 1[st] respondent against the present petitioner alleging offence under Sec.138 of the Negotiable Instrument Act (for short, the Act). 2. The case of the complainant in the complaint was that, the revision petitioner used to purchase articles from his shop on credit and in partial discharge of the amount due, he had issued Ext.P2 cheque dated 10.07.1998 for Rs.40,000/- (Rupees forty thousand only) in favour of the complainant. The cheque when presented was dishonoured for the reason “funds insufficient” vide Ext.P3 dishonour memo. The complainant issued Ext.P4 notice and the same was received by the revision petitioner as evidenced by Ext.P5 postal acknowledgment. He had not paid the amount. So he had Crl.R.P. No.678 of 2004 2 committed the offence punishable under Sec.138 of the Act. Hence this complaint. 3. When the revision petitioner appeared before the Court below, the particular offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the power of attorney holder of the complainant was examined as PW1 and Exts.P1 to P7 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Sec.313 of the Code of Criminal Procedure (for short, the Code) and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had purchased the articles by paying the amount. The cheque given as security has been misused. In order to prove his case, one Sri.Sreekumaran Nair was examined as DW1. After considering the evidence on record, the Court below found the revision petitioner guilty under Sec.138 of the Act, convicted him thereunder and sentenced him to undergo simple imprisonment for three Crl.R.P. No.678 of 2004 3 months and also to pay a compensation of Rs.45,000/(Rupees forty five thousand only) under Sec.357(3) of the Code. Aggrieved by the same, he filed Crl. Appeal No.157 of 2003 before the Sessions Court, Ernakulam which was made over to the 5[th] Additional Sessions Court for disposal. The learned Additional Sessions Judge by impugned judgment dismissed the appeal. Aggrieved by the same, the above revision has been filed by the revision petitioner/accused before the Court below. 4. Considering the scope of enquiry and also the fact that the matter is of the year 2004, this Court felt that the revision can be disposed of without serving any notice on the respondent No.1. So further notice to respondent No.1 is dispensed with. 5. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 6. The learned counsel for the revision petitioner submitted that the execution of the cheque has not been properly proved. Further, the cheque given as security for the business transaction between the parties Crl.R.P. No.678 of 2004 4 has been misused and the present case has been filed. The Courts below have not properly appreciated the evidence. 7. Learned Public Prosecutor submitted that the concurrent findings of the Court below do not call for any interference. 8. The case of the complainant in the complaint was that, the revision petitioner used to purchase articles from the complainant concern on credit basis and in partial discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that, he had no credit transaction. In order to prove the case of the complainant, their Manager cum Cashier was examined as PW1 and he had deposed in support of the case of the complainant in the complaint. 9. When Ext.P7 invoice was produced on the side of the complainant and they were prepared to adduce further evidence, the counsel for the revision petitioner before the Court below on verification of the invoice submitted that there is no necessity to recall the Crl.R.P. No.678 of 2004 5 witness and he had no knowledge about the transaction at all. Further, the revision petitioner did not adduce any acceptable evidence to prove as to how his cheque has reached in the hands of the complainant. Once it is proved by the complainant that the cheque was issued by the revision petitioner in discharge of his liability then, the burden is on the revision petitioner to prove the circumstances under which the cheque has reached the hands of the complainant which he did not discharge. Further he did not send any reply to Ext.P4 notice issued by the complainant when the cheque was dishonoured as well. That also will lead to the conclusion that since he had noting to say about the things mentioned in the notice, he did not send any reply. The evidence of DW1 is not helpful to prove the case of the revision petitioner. Ext.P7 shows that he purchased the article on Credit to Rs.1,68,347.50/- and he had not adduced any evidence to prove that this amount was discharged. So under the circumstances, the Courts below were perfectly justified in coming to the conclusion that the cheque was issued in Crl.R.P. No.678 of 2004 6 discharge of his liability and he had not paid the amount inspite of notice issued and thereby, he had committed the offence punishable under Sec.138 of the Act. 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 sentenced him to undergo simple imprisonment for three months and also to pay Rs.45,000/- ( Rupees forty five thousand only) as compensation under Sec.357(3) of the Code and no default sentence was imposed. This was confirmed by the appellate Court. 10. In the decision reported in **Damodar S. Prabhu V. Sayed Babalal H. [ JT 2010 (4) SC 457]** the Supreme Court has held that the cases under Sec.138 of the Act are of cases of civil nature and criminal colour has been given to that by incorporating the same in the Act. Further, the intention of the legislature is not to send the drawer to jail but to make the drawer to pay the amount to the payee of the cheque. Further, in the Crl.R.P. No.678 of 2004 7 decision reported in **Somnath Sarkar v. Utpal Basu Mallick [ 2013 (4) KLT 350 (SC) ]** the Supreme Court has held that there is no provision for payment of compensation in cases arising, under Sec.138 of the Act but the Court may impose double the cheque amount as fine and once the fine is quantified, compensation can be awarded out of the fine. 11. So, this Court feels that the compensation awarded by the Court below without default sentence is illegal. Since Rs.45,000/- (Rupees forty five thousand only) has been fixed by the Court below as compensation which can be converted into fine. The three months simple imprisonment imposed by the Court below as substantial sentence is excessive. The same can be reduced to imprisonment till rising of the Court and that can be awarded as default sentence. If the fine amount is realised, the same can be directed to be paid to the complainant as compensation under Sec.357(1)(b) of the Code. So the sentence imposed by the Court below is set aside and the same is modified as follows. Crl.R.P. No.678 of 2004 8 The revision petitioner is sentenced to undergo imprisonment till rising of the Court and also to pay a fine of Rs.45,000/- (Rupees forty finve thousand only) in default to undergo simple imprisonment for three months. If the fine amount is realised, the same be paid to the complainant as compensation under Sec.357(1)(b) of the Code. If any amount is deposited by the petitioner before the Court below as directed by this Court and also by the appellate Court then, he need only to deposit the balance amount towards the fine amount as directed by this Court. If the balance amount is paid within two months from today, (on or before 17.01.2015) then, the Court below is directed to permit him to serve the sentence of imprisonment till rising of the Court and close the case. If no amount is paid as directed above, by the appellate Court or by this Court, then, the revision petitioner has to pay the entire fine amount imposed before that date. Crl.R.P. No.678 of 2004 9 With the above modification of the sentence alone, the revision petition is allowed in part. Office directed to communicate this order to the concerned Court immediately. Sd/- **JUDGE** **K. RAMAKRISHNAN** NS