Chingam Chits Pvt. Ltd. v. Maheswaran and State (Criminal Revision Petition)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939** **Crl.Rev.Pet.No. 1173 of 2017** **--------------------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 201/2016 OF 1ST ADDITIONAL SESSIONS COURT, KOZHIKODE DIVISION** **AGAINST THE JUDGMENT IN C.C.NO. 463/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VATAKARA** **-------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **----------------------------------------------------------------------------** **1. CHINGAM CHITS PVT. LTD., VATAKARA, P.O.VATAKARA, THROUGH MANAGING DIRECTOR, CHANDRAN, S/O.KRISHNAN, AGED 56 YEARS, VATAKARA P.O., VATAKARA THALUK, KOZHIKODE DISTRICT.** **2. CHANDRAN,** - **S/O.KRISHNAN, AGED 56 YEARS, AUTHORISED SIGNATORY AND MANAGING DIRECTOR, VATAKARA P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, CHINGAM CHITS PVT. LTD., VATAKARA, P.O.VATAKARA, VATAKARA P.O., VATAKARA THALUK, KOZHIKODE DISTRICT.** **BY ADVS. SRI.ZUBAIR PULIKKOOL SRI.K.LAL MOHAN** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :** **------------------------------------------------------------------------------------------** **1. MAHESWARAN, S/O.JAYAN, AGED 39 YEARS, KABARDANI, P.O. CHOMBALA, VATAKARA THALUK, KOZHIKODE DISTRICT, PIN-673 308.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Msd.** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.R.P.No.1173 of 2017 ----------------------------------------Dated this the 13[th] day of October, 2017 ## _**O R D E R**_ The revision petitioners are the accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.463 of 2014 on the file of the Judicial First Class Magistrate Court, Vatakara, instituted on the basis of a complaint filed by the first respondent herein. 2. The trial court, as per the impugned judgment rendered on 3.5.2016, had convicted the petitioners for the abovesaid offence and had sentenced them to undergo simple imprisonment for one year and to pay fine of Rs.1,75,000/- to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a period of two months. Aggrieved thereby the petitioner had preferred Criminal Appeal No.201 of 2016 before the Sessions Court, Kozhikode. The appellate court concerned (Court of the Ist Additional Sessions Judge, Kozhikode), as per the impugned judgment rendered on 20.4.2017, had dismissed the appeal confirming Crl.R.P.No.1173/17 : **:2::** the conviction and modifying the sentence to pay fine of Rs.1,75,000/by the first petitioner and to undergo simple imprisonment for a period of three months by the second petitioner and the fine amount, if realised, shall be given to the complainant as compensation under Section 357(1) (b) of the Cr.P.C. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 3. Heard Sri.Zubair Pulikool, learned counsel appearing for the revision petitioners/accused and Sri.Jestin Mathew, learned prosecutor appearing for R2/State. 4. In the nature of the orders proposed to be passed in this revision petition, notice R1/complainant will stand dispensed with. 5. The gist of the case of the complainant is to the effect that the first accused is a Private Ltd. Company which is conducting the business of the chit transactions and the second accused is Managing Director of the said first accused Company. The complainant was the subscriber of a chit for a sala of Rs.2,00,000/- conducted by the accused chit Company and the chit was commenced on 7.1.2013 with a monthly subscription of Rs.8,000/-. He had paid his monthly subscription till 23.3.2014 and later, the chit was auctioned in his favour Crl.R.P.No.1173/17 : **:3::** on 12.2.2014. Towards the auctioned chit amount, the accused chit Company was liable to pay an amount of Rs.1,50,000/- to the complainant and in partial discharge of the said liability, the instant Exhibit P1 dated 20.2.2014 for Rs.1,50,000/- drawn from the account of the first accused Company and payable in favour of the complainant was issued. But, the cheque when presented for encashment resulted in dishonour. After following the requisite formalities, the complainant has initiated the present complaint which led to the conduct of the trial. 6. During trial, the complainant has examined himself as PW1 and has marked Exhibits P1 to P7 documents. 7. During trial, PW1 has deposed broadly in tune with the contents of his complaint. The main defence that is taken by the accused chit Company was to the effect that the instant Exhibit-P1 cheque was given as a blank signed cheque by the accused chit Company to the complainant as security for the monthly subscriptions already paid by him. Both the courts below have taken up the categorical view that the said defence plea taken up by the accused chit Company lacks believability and credibility. Inasmuch as in the ordinary course of chit business, no chit Company would issue their blank signed cheque as security to the subscriber for his contributed instalments. On the other hand, in many a case where the subscriber or the surety is the Crl.R.P.No.1173/17 : **:4::** accused, their constant refrain and plea before the criminal court for the offence under Section 138 of the Negotiable Instruments Act is to the effect that their blank signed cheque is taken as security at the time when the chit is prized or auctioned. Therefore, the very defence plea taken up by the accused chit Company was seriously found to be wanting in credibility. The specific evidence given by PW1 was to the effect that he has made a total contribution of Rs.1,08,120/-. The accused would also admit to that figure and the specific case of the complainant was to the effect that the chit was auctioned in his favour and the auctioned amount payable by the accused chit Company to him was Rs.1,80,000/- and the cheque in question happened to reflect part liability thereof for an amount of Rs.1,50,000/-. Going by the very defence set up by the accused, the signature in the cheque is that of the accused and the cheque was drawn by the accused from an account maintained by the chit Company. Therefore, going by the legal principles well settled by decisions of the Apex Court in _**T.Vasanthkumar v. Vijayakumari**_ reported in _**(2015) 8 SCC 378**_ and _**Rangappa v. Sri Mohan**_ reported in **(** _**2010) 11 SCC 441**_ , the complainant could successively draw the benefit of the statutory presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act. Other than making a defence suggestion, the accused Crl.R.P.No.1173/17 : **:5::** chit Company has not let in any evidence whatsoever to even remotely sustain the basis of such a defence suggestion. Unlike many of the cases where the subscriber or the surety in chit transactions are arrayed as accused, in the instant case, the chit Company and its Managing Director have been arrayed as accused. The accused chit Company is a Company which is regulated by the provisions of the Companies Act, 1956, as well as the Chits Act. All the documents relating to the transaction from its commencement onwards, as between the chit Company and the complainant are fully available with the accused chit Company. If that be so, it would have been quite easy for the accused chit Company to let in evidence and prove that the transaction as alleged by the complainant is not correct and that the cheque in question was given as blank signed one as security to the complainant as alleged by the accused, etc. No efforts whatsoever has been taken by the accused persons to sustain the basis of their defence. Therefore, the defence taken up by the accused had remained only in the realm of defence suggestion. 8. In the light of these aspects, the considered findings of facts made by both the courts below on a concurrent basis regarding the conviction of the petitioners/accused cannot be said to be vitiated by any illegality, perversity, etc. Therefore, this Court is not in a position to Crl.R.P.No.1173/17 : **:6::** interfere with the considered findings regarding the conviction of the petitioners. As regards the sentence, the trial court has imposed substantive sentence of one year imprisonment and to pay a fine of Rs.1,75,000/-. The fine amount has been arrived at on the basis of the dictum laid down by the Apex Court in _**R.Vijayan v. Baby and another**_ reported in _**(2012) 1 SCC 260**_ that the fine/compensation amount could be awarded not only in respect of the cheque amount, but also appropriate interest @ 9% per annum on the cheque amount from the date of cheque up to the date of realisation. The appellate court while confirming the conviction has modified the sentence by ordering that the first appellant Company is sentenced to pay a fine of Rs.1,75,000/- and the second appellant is sentenced to undergo simple imprisonment for a period of three months and if the fine amount is not paid the same could be realised from the assets of the first appellant Company and the fine amount realised shall be disbursed as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. The fine amount awarded appears to be proportionate and fair keeping in view that the cheque amount is for Rs.1,50,000/- and the cheque has been issued as early as on 20.2.2014. However, the substantive sentence of simple imprisonment for three months imposed on the second petitioner (accused No.2) appears to be quietly excessive. Therefore, this Court is Crl.R.P.No.1173/17 : **:7::** inclined to modify the sentence by directing that the first petitioner Company (accused No.1) is sentenced to pay a fine of Rs.5,000/-. The second petitioner (accused No.2) is sentenced to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.1,70,000/- to the complainant in terms of Section 357(3) of the Cr.P.C. On default of payment of the said amount, the second petitioner/accused No.2 shall suffer simple imprisonment for a period of three months. 9. Sri.Zubair Pulikool, learned counsel appearing for the petitioners, would submit that in case this Court is inclined to affirm the conviction, etc., then this Court may grant at least ten months’ time to the petitioners to pay the fine/compensation amount. Taking note of the facts and circumstances of this case, this Court is inclined to grant time up to eight months to the petitioners to pay the fine/compensation amount. 10. Accordingly, the following orders and directions are passed : - _(i) The impugned conviction imposed on the petitioner for the offence under Section 138 of the Negotiable Instruments Act will stand confirmed._ - _(ii) In supersession of the orders passed by the courts below, it is ordered that the petitioner Company/accused No.1 is sentenced to pay a fine of Rs.5,000/-. On default of payment of the said amount, the said amount is recoverable from the assets of the first accused Company._ Crl.R.P.No.1173/17 : **:8::** - _(iii) The second petitioner/accused No.2 is sentenced to imprisonment till the rising of the court and to pay compensation of Rs.1,70,000/- which is disbursable to the complainant in terms of Section 357(3) of the Cr.P.C._ - _(iv) On default of payment of the said amount, the second petitioner/accused No.2 will suffer simple imprisonment for a period of three months._ - _(v) The petitioners are given time by eight months from 15.10.2017 to remit the fine/compensation amount before the trial court._ - _(vi) The second petitioner/accused No.2 shall personally appear before the trial court at 11 A.M. on any day on or before 16.6.2018 to pay the fine of Rs.5,000/- imposed on accused No.1 Company and also to pay the compensation of Rs.1,70,000/- payable by him to the complainant. In default on the part of second petitioner/accused No.2, to pay the abovesaid compensation amount of Rs.1,70,000/-, he will have to suffer imprisonment for a period of three months._ - _(vii) Until 16.6.2018, all further coercive steps for execution of the impugned sentence in this case shall stand deferred._ The Registry shall issue copies of this order to the trial court and to the first respondent/complainant. With these observations and directions, the Criminal Revision Petition will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl