Crl.Rev.Pet.No.626 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 626 of 2011 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN Crl. APPEAL 230/2008 of ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK-I), THRISSUR, DATED 17-12-2010 & AGAINST THE JUDGMENT IN ST 1910/2003 of J.M.F.C.,WADAKKANCHERRY, DATED 16-02-2008** ## **REVISION PETITIONER(S)/PETITIONER/APPELLAN T:** **---------------------------------------------------------------------------** **C.A.UNNIKRISHNAN, S/O.APPUGUPTAN, CHEMBANPADATH HOUSE, VAKADAPURAM PO., PALAKKAD DISTRICT.** **BY ADV. SRI.C.S.ULLAS** ## **RESPONDENT(S)/RESPONDENTS:** **------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. ABDUL WAHAB THANGAL,S/O.MALIYEKAL POOKOYA THANGAL, MULLORKARA VILLAGE, THALAPPILLY TALUK, REP.BY HIS POWER OF ATTORNEY HOLDER, UNNIKRISHNAN.V.R, S/O.VARAVATTOR RAJAN, S.N.NAGAR DESOM, MULLORKARA VILLAGE, THALAPILLY TALUK, THRISSUR DISTRICT.** ## **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 0112-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.626 of 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 1[st] day of December, 2014 ## **O R D E R** Accused in S.T.No.1910/2003 on the file of Judicial First Class Magistrate Court, Wadakkancherry, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant herein, 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 15,000/-₹ and in discharge of the liability, he had issued Ext.P1 cheque in favour of the complainant. The cheque when presented was dishonoured for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonour memo and issued Ext.P3 notice vide Ext.P4 and P5 postal receipt and 2 Crl. R. P.No.626 of 2011 Ext.P6 and P7 will also prove the service of notice and Ext.P8 and P9 are produced to show that it was served on the revision petitioner, but 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, complainant himself was examined as PW1 and Exts. P1 to P9 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 stated that, there was no such transaction and he had not filed the complaint within time and he had not received any notice. DWs 1 and 3 Crl. R. P.No.626 of 2011 2 were examined on the side of the revision petitioner to prove that there was no service of notice. The court below found the case of the revision petitioner is not believable and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay ₹15,000/- as compensation to the complainant, in default to undergo simple imprisonment for one month under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.230/2008 before the Sessions Court and the same was made over to Additional Sessions Court(Fast Track-I), Thrissur, for disposal and the learned Additional Sessions Judge dismissed the appeal. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Though the revision was admitted and notice was ordered in the year 2011, notice was not served on the 4 Crl. R. P.No.626 of 2011 first respondent so far. So considering the nature of defence and scope of enquiry, this court felt that the revision can be disposed of today, after hearing the counsel for the revision petitioner and Public Prosecutor, dispensing with further notice to the complainant, as the accused is in jail now, as he had not executed the bond as directed. 5. The counsel for the revision petitioner submitted that, there was a delay of 38 days in filing the complaint and without giving an opportunity of hearing to the revision petitioner, the delay was condoned and that was challenged by him by filing Crl.M.C.No.1164/2006 and also a Transfer Petition (Crl.)No.82/2007 and that was disposed of by this court, directing the magistrate to consider the delay also in the matter and that was not considered by the court below. So according to him, serious irregularity has been committed by the court below in this regard. He had also assailed the findings of the court 5 Crl. R. P.No.626 of 2011 below on the question of execution of cheque and liability and conviction entered by the courts below. 6. Learned Public Prosecutor supported the concurrent findings of the court below. 7. The case of the complainant in the complaint was that, accused borrowed a sum of 15,000/- and in₹ discharge of that liability, he had issued Ext.P1 cheque. Though there was a delay of 38 days in filing the complaint, the court below had entertained the complaint is the first contention raised by the counsel for the revision petitioner. 8. The counsel for the revision petitioner himself was submitted that, though he filed Crl.M.C.No.1164/2006 and also Transfer Petition(Crl). No.82/2007 to transfer the case to some other court, this court has disposed of both the petitions, giving an opportunity to the revision petitioner, raise the question of delay during the course of trial. But it is seen from the 6 Crl. R. P.No.626 of 2011 judgment that, no such questions were put to the complaint regarding the delay. That shows that, the revision petitioner had forfeited his right to challenge the question of delay and the action of the court in condoning the delay and entertaining the complaint. So it cannot be said that, court below had committed any irregularity, especially when that point was not raised by the accused, when an opportunity was given to him and no question was put by the complainant regarding the delay, then the court can only be justified in coming to the conclusion that the revision petitioner had no complaint regarding the condonation of delay. 9. As regards the case on merit is concerned, there is no evidence adduced on the side of the revision petitioner to prove the circumstance under which his cheque had reached the hands of the complainant. Further he had no specific case also regarding the issuance of the 7 Crl. R. P.No.626 of 2011 cheque. He had no case that he had not borrowed the amount and he had not issued the cheque. Further he did not send any reply to the notice issued as well. Further DW1 and 2 were examined on the side of the revision petitioner, who are the post man and post master which prove that the notice was served on the addressee. Court below had in fact raised its eyebrows as to why these witnesses were examined on the side of defence, especially when notice were properly served on the addressee and the evidence of Ext.P8 and P9 reply sent by the customer centre, when they did not receive the acknowledgment. Further it is a case of non receipt of the acknowledgment and the time to run to file complaint as well arise only from the date on which they received intimation regarding the service of notice on the revision petitioner by getting Ext.P8 letter. So if that period is taken, it appears that, there is no delay as such in filing the complaint as well. So under the 8 Crl. R. P.No.626 of 2011 circumstances, courts below were perfectly justified in coming to the conclusion that the complaint is maintainable and the revision petitioner had committed the offence punishable under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference. 10. As regards the sentence is concerned, the court below had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay the cheque amount of 15,000/-, to the complainant as₹ compensation, in default to undergo simple imprisonment for another one month under Section 357(3) of the Code of Criminal Procedure. This was confirmed by the appellate court. 11. In the decision reported in **Somanath** **Sarkar v. Utpal Basu Mallick [2013(4) KLT 350 (S.C.)]** , the Hon'ble Supreme Court has held that, there is 9 Crl. R. P.No.626 of 2011 no provision for payment of compensation in cases where the accused is found guilty under Section 138 of the Act, but court has got power to impose fine, to the extent of double the cheque amount and once the fine is quantified, compensation can be paid out of the fine amount. Further it is also settled law that, cases under Section 138 of the Negotiable Instruments Act are basically civil in nature, but criminal colour has been given by introducing Section 138 in the Negotiable Instrument Act, so as to make the drawer of the cheque to pay the amount and not to send him to jail. It is also settled law, that is not always necessary to provide imprisonment as a substantive sentence, but court can award reasonable compensation for the loss sustained by the complainant and make the accused to pay the amount and avoid substantive sentence of imprisonmet in such cases. Considering the fact that the case is of the year 2003, this court felt that, the fine amount can be enhanced Crl. R. P.No.626 of 2011 10 to 20,000/- and substantive sentence of three months can₹ be reduced to imprisonment till rising of the court and the default sentence can be enhanced to three months and that will meet the ends of justice and some time also can be given to the revision petitioner to pay the amount. So the sentence is modified as follows: The revesion petitioner is sentenced to undergo imprisonment till rising of the court and also to pay a fine of ₹20,000/-, in default to undergo simple imprisonment for three months. If the fine amount is realised, the same is directed to be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Three months time is granted to the revision petitioner to pay the amount, till then, the execution of sentence is directed to be kept in abeyance. Court below is directed to release the revision petitioner so as to enable him to pay the amount with the time provided by this court. Crl. R. P.No.626 of 2011 11 With the above modification of the sentence, the revision petition is allowed in part. Office is directed to communicate this order to the concerned court, immediately. Registry is directed to communicate this order to the court below immediately by fax, so as to enable the court below to issue necessary release order to the jail authorities to releae the revision petitioner, so as to enable him to pay the amount, within the time extended by this court. Sd/- ## **K. RAMAKRISHNAN, (Judge)** // True Copy// P.A. to Judge ss