Christudas v. State of Kerala and John

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935** **Crl.Rev.Pet.No. 461 of 2013 ()** **-------------------------------** **AGAINST THE JUDGMENT IN Crl.A.No. 997/2008 of ADDITIONAL SESSIONS JUDGE-I, THIRUVANANTHAPURAM** **AGAINST THE JUDGMENT IN ST.411/2007 of JUDICIAL FIRST CLASS MAGISTRATE-V, NEYYATTINKARA** **==========================** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **CHRISTUDAS, AGED 52 YEARS S/O APPALOSE, MANALUVILA, ARAYOOR ARAYOOR P.O., AMARAVILA VIA, NEYYATTINKARA.** **BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAIANANT:** **--------------------------------------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **2. JOHN, AGED 52 YEARS** **S/O DEVADAS, MELEPONVILATHAI VEEDU, AYIRA PO PARASALLA, NEYYATTINKARA-695129.** **R1 BY PUBLIC PROSECUTOR SRI.LIJU V. STEPHEN R2 BY ADV. SMT.R. VIJAYAKUMARI** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SD** K.HARILAL, J. --------------------------------------Crl.R.P.No. 461 OF 2013 --------------------------------------Dated this the 25[th] day of March, 2013. ## O R D E R The Revision Petitioner is the accused in S.T.No. 411/2007 on the files of Judicial First Class Magistrate Court-V Neyyanttinkara as well as the appellant in Criminal Appeal No.997/2008 on the files of the Additional Sessions Judge-I, Thiruvananthapuram. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'N.I. Act') on a complaint filed by the 2[nd] respondent herein. After trial, the learned Magistrate found the Revision Petitioner guilty of the offence punishable under Section 138 of the N.I. Act and convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.3,65,000/- for the offence punishable under Section 138 of the N.I. Act. In default, to undergo simple imprisonment for further one month. The fine amount if realised shall be given to the 2[nd] respondent under Section 357(1) Cr.P.C. Though the Revision Petitioner had preferred an appeal, the Appellate Court also **2** _Crl.R.P. No. 461/2013_ confirmed the conviction entered and modified the sentence. The substantive sentence of imprisonment was modified to imprisonment till rising of the court and to pay a fine of Rs.3,70,000/-. The default sentence has been sustained without any interference. 2. It is the case of the 2[nd] respondent that Ext.P1 cheque dated 11.09.2006 was issued in discharge of a legally enforceable debt for an amount of Rs.3,60,000/- in favour of the 2[nd] respondent. When the cheque was presented for encashment, the same was dishonoured for want of sufficient funds. Though the 2[nd] respondent had issued a statutory notice demanding the cheque amount and the same had been accepted by the Revision Petitioner, the Revision Petitioner neither sent a reply nor did he pay off the cheque amount. Hence, the Revision Petitioner has committed the offence punishable under Section 138 of the N.I. Act. On the contrary, the Revision Petitioner put forth a rival contention that the 2[nd] respondent owed a sum of Rs.10,000/- to his brother-in-law. The Revision Petitioner obtained the said amount actually due to his brother-in-law from the 2[nd] respondent and issued a signed blank cheque to the 2[nd] respondent as **3** _Crl.R.P. No. 461/2013_ security. Though the Revision Petitioner paid Rs.10,000/- to his brother-in-law, the 2[nd] respondent retained the blank signed cheque with him. The Revision Petitioner pledged some gold with the 2[nd] respondent and latter demanded more money in that transaction which the Revision Petitioner did not heed to. In that context, the 2[nd] respondent misused the signed blank cheque, which was handed over to him when the Revision Petitioner received Rs.10,000/-, for the purpose of prosecuting him under Section 138 of the N.I. Act. 3. To prove the execution and issuance of the cheque, the 2[nd] respondent was examined as PW1 and Exts.P1 to P6 were marked. No oral evidence was adduced by the Revision Petitioner and Exts.D1 to D3 were marked to substantiate the contention raised in his 313 statement. After evaluating the evidence on record, the Trial Court found that though the 2[nd] respondent was cross examined in detail, nothing has been brought out to discredit the oral evidence of the 2[nd] respondent and the 2[nd] respondent successfully discharged the initial burden of proof with regard to execution and issuance of the cheque. **4** _Crl.R.P. No. 461/2013_ 4. The learned counsel for the Revision Petitioner submits that the amount was borrowed by 11 instalments from 2005-2006 onwards and it is highly improbable. It is not supported by any contemporaneous documents. Coming to the facts of this case, I am not inclined to accept the said arguments on two reasons. If the debt claimed by the 2[nd] respondent was untrue and incorrect, the Revision Petitioner could have denied the liability at the earliest opportunity when he received Ext.P3 notice. The absence of response, inspite of the demand of a huge amount would improbabilise the contention raised by the Revision Petitioner. Secondly, had the contention raised by the Revision Petitioner been true, he could have made himself available for cross examination. But he willfully didn't mount the witness box. If Rs.10,000/- was received from the 2[nd] respondent on a promise that he would give that amount to his brother-in-law to whom the 2[nd] respondent owed the said amount, there was no need to issue Ext.P1 cheque in turn to the 2[nd] respondent. Thus the explanation as to issuance of Ext.P1 cheque to the 2[nd] respondent is highly improbable and unbelievable. In **Johnson Scaria v. State of Kerala, [2006(4)K.L.T. 290]** this Court held that possession of **5** _Crl.R.P. No. 461/2013_ the cheque by the complainant goes a long way to prove issuance of the cheque. In the absence of evidence, atleast by the yardstick of preponderance of probability, the court below can be fully justified in rejecting the contentions. 5. Coming to the evidence of Revision Petitioner, though he has put forth a definite contention pertaining to another transaction involving his own brother-in-law also, neither the Revision Petitioner nor his brother-in-law had been examined to substantiate the said contention and the Trial Court found that the defence case put forth by the Revision Petitioner is highly improbable. Though he had produced Exts.D1 to D3, those documents are not sufficient either to improbabilise the prosecution case or to probabilise the defence set up by the Revision Petitioner in the examination under Section 313 of the Cr.P.C. Consequently, the court below found that the debt due to the 2[nd] respondent was a legally enforceable one and Ext.P1 cheque was duly executed and issued in discharge of that debt. After re-appreciating the entire evidence, the Appellate Court also confirmed the said findings. There is no illegality or impropriety in the judgment under challenge. I find no kind of perversity in **6** _Crl.R.P. No. 461/2013_ the appreciation of evidence also. 6. The learned counsel for the Revision Petitioner submits that in fact, there was no representation before the Appellate Court when the case was taken for hearing. The learned counsel for the Revision Petitioner cited decisions reported in **S. Anand v. Vasumathi Chandrasekar (2008(4)SCC 67), Ashok Manikchand Chankeshwara and others v. H.R. Barge and another (2007(2)SCC 776), Ganesh v. State of Maharashtra (2007(15)SCC 587)** and pointed out that the learned Sessions Judge should not have rendered judgment even on merits, without hearing the counsel. Going by the impugned judgment under challenge, it could be seen that the learned Sessions Judge passed the impugned order in view of the decision rendered in **Bani Sing v. State of Utter Pradesh (AIR 1996 SC 2439)** . This decision of the Supreme Court was rendered by a Bench comprised of three Judges. I have considered the decisions cited by the learned counsel for the Revision Petitioner and found that these three decisions are rendered by Benches comprised of two Judges only. In these decisions the decisions laid down in **Bani Sing v. State of Utter Pradesh (AIR 1996 SC 2439)** **7** _Crl.R.P. No. 461/2013_ was not brought to the notice of those Benches. This issue of per incurium was considered by the Supreme Court in recent decision reported in **K.S.Panduranga v. State of Karnataka, 2013(3) SCALE 152** and held that all the three decisions cited by the Revision Petitioner are per incurium and the decision rendered in **Bani Sing v. State of Utter Pradesh (AIR 1996 SC 2439)** will govern field on this issue. Thus the learned Sessions Judge is fully justified in passing the judgment relaying on the decision rendered in **Bani Sing v. State of Utter Pradesh (AIR 1996 SC 2439)** in the absence of the counsel for the Revision Petitioner, after considering the merits of the case in detail. Therefore, no prejudice has been caused to the Revision Petitioner as the judgment was rendered on merits though none appeared for him. Therefore, the Revision Petition is devoid of merits and consequently dismissed. ## **Sd/-** ## **K.HARILAL, JUDGE** ## **sd** ## **True copy** ## **P.S.to Judge**