High Court of KeralaSingle Judge2014-10-24Revision petition dismissed; conviction upheld;...

C.K. Rasheed v. V.K. Damodaran and The State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.1816 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-10-24
Court Decision / Holding: Revision petition dismissed. The court upheld the conviction under Section 138 NI Act, maintained the compensation award of Rs 55,000 with default imprisonment, and granted the petitioner time till 24.12.2014 to pay the amount. If payment is made with proof, it will be treated as substantive compliance; otherwise, the substantive sentence would operate till rising of the court. The execution of sentence was stayed/kept in abeyance pending payment and the matter was directed to be communicated to the concerned court.
Final Disposition: Revision petition dismissed; conviction upheld; time to pay compensation granted; execution stayed pending payment.

Parties to the Case

Appellants / Petitioners

C.K. Rasheed

Respondents

V.K. Damodaran
The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri V.T. Madhavanunni
• Sri V.A. Satheesh
• Sri J. Abhilash

Counsels for Respondents

• Public Prosecutor Sri. N. Suresh

Case Synopsis & Summary

This High Court of Kerala judgment concerns a criminal revision petition filed by C.K. Rasheed challenging a conviction under Section 138 of the Negotiable Instruments Act arising from a private complaint filed by V.K. Damodaran before the Judicial First Class Magistrate, Taliparamba. Damodaran alleged that Rasheed borrowed Rs 50,000 and issued a cheque in discharge of the liability, which was dishonoured for insufficient funds; notice of dishonour was issued and the matter proceeded to trial. The accused pleaded not guilty, claiming that the complainant, while serving as Circle Inspector of Police at Sreekandapuram, misused his official position to obtain a blank signed cheque, and that the present complaint is a fabrication. The trial court convicted Rasheed under Sec. 138 NI Act and sentenced five months’ imprisonment with Rs 50,000 compensation and default imprisonment. On appeal, the II Additional Sessions Court, Thalassery, reduced the substantive sentence to imprisonment till rising of the court, but sustained the conviction and compensation. The High Court, on admission, heard submissions and held that the defence did not rebut the statutory presumption under Sections 139 and 118 NI Act, and that the evidence relied on by the complainant was credible. The court granted time to pay the compensation, stayed execution, and ultimately dismissed the revision petition, directing payment by 24 December 2014 and recording a subsisting sentence if payment is not made.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 139 of the Negotiable Instruments ActSection 118 of the Negotiable Instruments ActSection 357(3) of the Code of Criminal ProcedureSection 313 of the Code of Criminal Procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the revision petitioner submitted that the defence has not been properly appreciated and that the case against him is not supported by evidence. The core defence is that the complainant, then Circle Inspector of Police at Sreekandapuram, obtained a blank signed cheque from Rasheed through abuse of official position, and that the present complaint is a fabrication. Therefore, the presumption under Sections 139 and 118 NI Act ought to be rebutted and the burden of proof on the complainant remains unsatisfied; there is no independent corroboration of the debt or the signature. The petitioner contended that the evidence does not establish liability beyond reasonable doubt and that the trial and appellate courts erred in relying solely on PW1 and the statutory presumptions. He urged that the case require careful scrutiny and prays for acquittal on these grounds, or at least a reappraisal of the evidence if conviction is to stand.

Contentions of Respondents

The Public Prosecutor supported the concurrent findings of the courts below, arguing that the complainant’s version is credible and the presumptions under Sections 139 and 118 NI Act are applicable. No satisfactory evidence was adduced by the accused to rebut the presumption or to establish misappropriation of position; the cheque was issued in connection with a liability and dishonor on presentation was properly established. The prosecution urged that the appellate court’s partial modification of sentence falls within its appellate powers and that the conviction should be affirmed. The State also supported the step taken by the court to grant a time-bound opportunity to pay compensation, maintaining the integrity of the conviction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Beena v. Balakrishnan Nair and Another	2010 (2) KLT 1017	Positive	Court relied on Beena to treat payment as substantive compliance and to record payment in registers.
Sivankutty v. John Thomas and Another	2012 (4) KLT 21	Positive	Court cited Sivankutty for the same principle of treating payment as substantive compliance and method of recording.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 1816 of 2014 ()** **-------------------------------AGAINST THE ORDER/JUDGMENT IN CRA 40/2008 of ADDL.DC - II, THALASSERY IN S.T .C. No.4855/2004 of J.M.F.C.,TALIPARAMBA.** ## **REVISION PETITIONER(S)/PETITIONER/ APPELLANT/ ACCUSED:** **------------------------------------------------------------------------------------------** **C.K.RASHEED, AGED 39 YEARS, S/O KAMAL KUTTY HAJI, SREEKANDAPURAM P.O., SREEKANDAPURAM AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH** ## **RESPONDENT(S)/RESPONDENTS/ COMPLAINANT & STATE:** **--------------------------------------------------------------------------------------** ## **1. V.K.DAMODARAN,** **S/O KUNHIRAMAN NAMBAIR, ARUNALAYAM, CHENGALAYI P.O., CHENGALAYI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT -670631.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **PUBLIC PROSECUTOR SRI. N. SURESH** ## **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** SS ## **K. RAMAKRISHNAN, J.** -------------------------------------------------------------------------Criminal Revision Petition No.1816 of 2014 ----------------------------------------------------------------------Dated this the 24[th] day of October, 2014 ## **O R D E R** Accused in S.T.C.No.4855/2004 on the file of Judicial First Class Magistrate Court, Taliparamba, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Code'). 2. The case of the complainant in the complaint was that, the accused borrowed a sum of ₹50,000/- from the complainant and in discharge of the liability, he had issued Ext.P1 cheque, which when presented was dishonoured for the reasons ‘funds insufficient’, vide Ext.P2 dishonour memo. The complainant issued Ext.P3 notice, vide Ext.P4 postal receipt and the same was received by the accused evidenced by Ext.P5 postal acknowledgment. Ext.P6 was Crl.R.P.No.1816 of 2014 2 produced to prove that, there was no sufficient amount in the account of the accused to honour the cheque, when it was presented for collection. The accused 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 accused appeared before the court below, the particulars of offences 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 Exts.P1 to P6 were marked on his side. After closure of the complainant's evidence, the accused 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. According to him, while the complainant was working as Circle Inspector of Police, Sreekandapuram, mis-using his official position, obtained a blank signed cheque from him and mis-using the same, the present complaint has been filed. But no evidence 3 Crl.R.P.No.1816 of 2014 was adduced on his side in proof of his case. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Negotiable Instruments Act and convicted him thereunder and sentenced him to undergo simple imprisonment for five months and also to pay 55,000/- as₹ compensation to the complainant, in default to undergo simple imprisonment for two months under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.40/2008 before the Additional Sessions Court-II, Thalassery, and it was made over to II[nd] Additional Sessions Court, Thalassery, for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part, confirming the order of conviction and a direction to pay compensation with default sentence, but reduced the substantive sentence to imprisonment, till rising of the court. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below. Crl.R.P.No.1816 of 2014 4 4. Considering the scope of enquiry in the revision, this court felt that, the revision can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the 2[nd] respondent, dispensing with notice to the first respondent. 5. The counsel for the revision petitioner submitted that, the defence of the accused has not been properly appreciated and his case that mis-using the official position, the complainant had obtained a cheque from him and misused the same, the present complaint has been filed is more probable and thereby he had rebutted the presumption. The courts below were not justified in convicting the appellant for the offence alleged. 6. The learned Public Prosecutor supported the concurrent findings of the court below on this aspect. 7. The case of the complainant in the complaint was that, accused borrowed a sum of 50,000/-₹ and in discharge of that liability, he had issued Ext.P1 5 Crl.R.P.No.1816 of 2014 cheque. The case of the accused was that, mis-using the official position as Circle Inspector of Police, Sreekandapuram, while he was working in that capacity there, the complainant obtained the blank signed cheque. Except a suggestion given, there is no evidence adduced on the side of the accused to prove this fact. Further, no reply was sent to the notice issued by the complainant when the dishonour was intimated to him as well. So under the circumstances and in the absence of any acceptable evidence adduced from the side of the accused to rebut presumption, courts below were perfectly justified in relying on the evidence of PW1 and the presumptions available under Section 139 and 118 of the Act and rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the courts below on fact do not call for any interference, as no illegality has been committed by them. 8. As regards the sentence is concerned, though the trial court had imposed substantive sentence Crl.R.P.No.1816 of 2014 6 of five months apart from the direction to pay compensation with default sentence under Section 357(3) of the Code, the appellate court had reduced the substantive sentence of imprisonment, till rising of the court. The amount of compensation awarded appears to be just and proper. Maximum leniency has been shown by the appellate court in imposing the sentence as well, which does not require any interference at the hands of this court. While the case was about to be disposed of, the counsel for the revision petitioner prayed some more time to pay the amount. Considering the amount involved, two months time can be granted to the revision petitioner to pay the amount. So the revision petitioner is granted time till 24.12.2014 to pay the amount, till then the execution of sentence will be kept in abeyance. If the amount is paid directly to the complainant and proof of payment is produced before the court below and presenting the complainant before the court to acknowledge the same, then the court below is directed to treat the same as substantive compliance and record 7 Crl.R.P.No.1816 of 2014 the payment in respective registers as provided in **(2010 (2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** and permit the revision petitioner to serve the substantive sentence of imprisonment, till rising of the court. With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss