Cherlakundil Alavi v. N.K. Aboobacker and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 2447 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN Crl. APPEAL 168/2002 OF THE SESSIONS COURT, MANJERI, DATED 04.08.2003 & AGAINST THE JUDGMENT IN CC 193/2001 of J.M.F.C., MALAPPURAM, DATED 22.06.2002** ## **REVISION PETITIONER(S):** **--------------------------------------** **CHERLAKUNDIL ALAVI, S/O. HYDRU, PART-TIME SWEEPER, MULLAMPARA AMSOM, VAKKETHODIL DESOM, MANJERI P.O., MALAPPURAM DISTRICT.** ## **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT(S):** ## **------------------------** **1. N.K. ABOOBACKER, S/O. MOHAMMED ALI HAJI, KUZHAKKATHODI HOUSE, MUNDUPRAMBA, MALAPPURAM DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.2447 of 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 26[th] day of November, 2014 ## **O R D E R** Accused in C.C.No.193/2001 on the file of the Judicial First Class Magistrate Court, Malappuram, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent 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 ₹2,40,000/- on 01.11.1998, agreeing to repay the amount within one month and when demanded he had issued Ext.P1 cheque, in discharge of that liability, which when presented was dishonored for the reasons ‘funds insufficient’, vide Ext.P2 dishonour memo evidenced by Ext.P11 extract of cheque return register maintained by the bank and also Ext.P10 ledger extract of account of the accused maintained by the bank. This was intimated 2 Crl. R. P. No.2447 of 2003 to the complainant by his banker vide Ext.P3 memo. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He had sent Ext.P7 reply. Revision petitioner also issued Ext.P8 notice and the complainant issued Ext.P9 reply notice. 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 the bank manager was examined as PW2 and Exts.P1 to P11 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 3 Crl. R. P. No.2447 of 2003 stated that, he had borrowed an amount of 1,00,000/-₹ and issued Ext.P1 cheque as a security for the same. Though the amount was paid, the cheque was not returned and mis-using the cheque, the present complaint has been filed. In order to prove his case, one witness was examined as DW1. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay a fine of ₹5,000/- to the complainant, in default to undergo simple imprisonment for one month. Aggrieved by the same, the complainant filed Criminal Appeal No.168/2002 before the Sessions Court, Manjeri, and the learned Sessions Judge, by the impugned judgment allowed the appeal in part, reducing the substantive sentence to two months, but confirmed the sentence of fine with default sentence. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below. Crl. R. P. No.2447 of 2003 4 4. The case was of the year 2003. Notice sent to R1 was returned with endorsement 'not residing in that address'. Considering the scope of enquiry, this court had felt that, the revision can be disposed of after hearing the counsel for the revision petitioner and learned Public Prosecutor, dispensing with further notice to the first respondent. 5. The counsel for the revision petitioner submitted that, his case was that, he had borrowed only ₹1,00,000/and issued Ext.P1 cheque and he had examined DW1 to prove that fact. He had rebutted the presumption and he had sent proper reply also. The courts below have not properly appreciated the evidence. So the courts below were not justified in convicting the revision petitioner for the offence alleged and he prayed for acquittal. 6. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below on this aspect. 7. The case of the complainant in the 5 Crl. R. P. No.2447 of 2003 complaint was that, the accused borrowed a sum of ₹2,40,000/-, and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that he had borrowed only 1,00,000/- and issued₹ Ext.P1 cheque as a blank signed cheque. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts. P1 to P11 were marked on his side. He denied the suggestion that, the revision petitioner borrowed an amount of 1,00,000/-₹ and issued a blank signed cheque. He had categorically stated that, the cheque was brought, signed and filled in his presence and delivered the same. The evidence of DW1 is not convincing. Further the case of the revision petitioner was that, the transaction had taken place in the presence of one Mohammed, S/o.Paramban Alavi Musaliyar, but that person was not examined instead of one Mohammedali was examined. No where in the reply sent, it was mentioned that, the transaction had taken place in the presence of any witness. Further he had not sent any stop memo to the bank, when he had paid the Crl. R. P. No.2447 of 2003 6 amount for which the cheque was said to have been given as security. So all these things will go to show that, the case of the revision petitioner is not believable or probable and the courts below have rightly dis-believed the case of the revision petitioner and believed the case of the complainant and came to the conclusion that revision petitioner borrowed 2,40,000/- and in discharge₹ of that liability, he had issued Ext.P1 cheque, especially when the revision petitioner had no case that the complainant had no capacity to raise the amount and pay such amount as well. The concurrent findings of the courts below on this aspect do not call for any interference, as no illegality has been committed by the courts below in appreciating the evidence and it was done in the right perspective. 8. 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 fine of 5,000/-, in default to undergo simple₹ imprisonment for one month more. The appellate court Crl. R. P. No.2447 of 2003 7 had reduced the substantive sentence to two months, but retain the fine and default sentence. The counsel for the revision petitioner prayed for avoiding the substantive sentence. 9. It is settled law that, basically the offence under Section 138 is of civil nature and criminal colour has been given to the transaction by way introducing Section 138 in the Negotiable Instruments Act. Further it will be seen from the scheme of the provision that, the intention of the legislature is to make the drawer of the cheque to pay the amount to the payee and that was the reason why an opportunity is being given by sending notice giving time to pay the amount. Further in the decision reported in **Damodar S. Prabhu v. Sayed Babalal H. [JT 2010 (4) (S.C.)457]** , the Hon’ble Supreme Court has held that, in the case of Negotiable Instruments Act, if conviction is entered, the provision for compensation is to be made and that must be to the extend of the cheque amount at least. Further in the decision reported in **Suganthi v. Jagadeeshan** 8 Crl. R. P. No.2447 of 2003 **(2002(1) KLT 581)** , the Hon’ble Supreme Court has held that, as the law stood then, though the magistrate has no power to impose fine more than 5,000/-, that will₹ not fetter the right of the magistrate to impose compensation more than ₹5,000/-. So applying the principles laid down in the above decision, this court feels that, reducing the substantive sentence to imprisonment, till rising of the court and directing him to pay the cheque amount of ₹2,40,000/-, as compensation to the complainant with default sentence of three months simple imprisonment under Section 357(3) of the Code of Criminal Procedure, will be sufficient and that will meet the ends of justice. So the sentence imposed by the courts below as modified by the appellate court namely, two months simple imprisonment and fine of 5,000/- with₹ default sentence of one month simple imprisonment are set aside and the same is modified as follows: The revision petitioner is sentenced to undergo imprisonment till rising of the court and also to pay the cheque amount of 2,40,000/-, as compensation to the₹ Crl. R. P. No.2447 of 2003 9 complainant, in default to undergo simple imprisonment for three months under Section357(3) of the Code of Criminal Procedure. If any amount has been deposited by the the revision petitioner as directed by this court for suspending the sentence, then that can be given credit and adjust the same to this amount and he need only to pay the balance amount. Considering the amount involved, the revision petitioner is granted six months time to pay the amount. So the revision petitioner is granted time till 26.05.2015 to pay the amount, till then, the execution of the sentence is directed to be kept in abeyance. With the above modification of the sentence alone, the revision is allowed in part. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, (Judge)** // True Copy// ## P.A. to Judge ss