Crl.R.P.No. 1939 of 2014 (C.K. Abdul Rasheed v. K.P. Ashok and State)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 19TH DAY OF NOVEMBER 2014/28TH KARTHIKA, 1936** **Crl.Rev.Pet.No. 1939 of 2014 ()** **--------------------------------** **AGAINST THE JUDGMENT IN Crl. APPEAL 122/2007 of ADDL. SESSIONS JUDGE-I, ADDL.MACT,THALASSERY, DATED 28-02-2014 & AGAINST THE JUDGMENT IN ST C 1924/2005 of J.M.F.C.-I, KANNUR, DATED 13.02.2007** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------------------------------------** **C.K. ABDUL RASHEED, AGED 39 YEARS, S/O.LATE KAMAL KUTTY HAJI, SREEKANDAPURAM AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH** ## **RESPONDENT(S)/COMPLAINANT/STATE:** **----------------------------------------------------------** ## **1. K.P. ASHOK,** **S/O.RAGHAVAN, ACCOUNTANT, IRITTY CHITS FINANCE & INVESTMENTS (P) LTD. SREEKANDAPURAM PO, SREEKANDAPURAM AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT - 670 631.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM .** **R1 BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1939 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 19[th] day of November, 2014 ## **O R D E R** Accused in S.T.No.1924/2005 on the file of the Judicial First Class Magistrate Court-I, Kannur, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant 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 joined two chitties, conducted by the first respondent and bid the chitties and committed default in payment and there was an amount of 3,52,000/-₹ due in this transaction and when he demanded, the revision petitioner issued Ext.P2 cheque dated 18.03.2005 in discharge of that liability. The cheque when presented was dishonored for the reasons ‘funds insufficient’, vide Ext.P3 2 Crl. R. P.No.1939 of 2014 dishonour memo. Complainant issued Ext.P4 notice dated 25.04.2005 vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He had not paid the amount. He had sent Ext.P7 reply containing false allegations. 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 power of attorney holder of the complainant namely PW1 was examined and Exts.P1 to P8 were marked on their 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, the amount demanded 3 Crl. R. P.No.1939 of 2014 is not really due and he had paid certain amounts, which were not credited. The amount mentioned in the cheque is not due. A blank signed cheque given at the time of bidding the chitty, was mis-used and the present complaint was filed. In order to prove his case, he had marked Exts.D1 to D4 through PW1 and no other evidence was adduced. After considering the evidence on record, the court below found that the complainant had paid 41,220/-, after filing of the₹ complaint and that will not exonerate the criminal liability as the entire cheque amount has not been paid within 15 days on receipt of the notice and 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 3,12,000/- as₹ compensation to the complainant namely Iritty Chits Finance and Investments Private Ltd., Iritty, in default to undergo simple imprisonment for five months more under Section 357(3) of the Code. Aggrieved by the same, the 4 Crl. R. P.No.1939 of 2014 revision petitioner filed Criminal Appeal No.122/2007 before the Sessions Court, Thalassery, which was made over to First Additional Sessions Court, Thalassery, for disposal and the learned Additional Sessions Judge, allowed the appeal in part, confirming the order of conviction and also the compensation payable, but reducing the substantive sentence to imprisonment, till rising of the court and default sentence of three months. Dissatisfied with the same, the present revision has been filed by the revision petitioner/ accused before the court below. 4. Since the first respondent appeared through counsel in the delay application and prepared to appear in the revision also, this court felt that, the revision can be admitted, heard and disposed of today itself on merit. So the revision is admitted, heard both sides and disposed of today itself. 5. The counsel for the revision petitioner submitted that, the evidence of PW1 is not sufficient to 5 Crl. R. P.No.1939 of 2014 come to the conclusion that, the amount is due and the cheque was supported by consideration and it was issued in respect of a legally enforcible debt. So according to the learned counsel, the court below was not justified in convicting the appellant for the offence alleged. 6. On the other hand, the counsel for the first respondent submitted that, no evidence has been adduced on the side of the revision petitioner to rebut the presumption and the power of attorney holder of the complainant concern was examined as PW1 and he had deposed in support of the case and proved the transaction as well as the execution of the cheque. So the concurrent findings of the court below on this aspect do not call for any interference. 7. The learned Public Prosecutor supported the submission made by the counsel for the first respondent. 8. The case of the complainant in the complaint was that, the revision petitioner was a subscriber to two Crl. R. P.No.1939 of 2014 6 chitties for a total amount of 6,00,000/-. He bid the₹ chitties and committed default in payment of the amount and when demand was made, he came to the office of the complainant and after ascertaining the amount, he had issued Ext.P2 cheque in discharge of that liability in favour of the complainant company. In order to prove this case, the power of attorney holder of the complainant authorized by Ext.P1 power of attorney and Ext.P7 minutes of the company was examined as PW1 and he deposed in support of the case in the complaint. He had categorically stated that, after ascertaining the amount, the accused had signed the cheque in his presence and delivered the same to him. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding this aspect. Exts.D1 to D4 are not helpful to prove the case of the revision petitioner that the amount is not really due. The amount that has been shown as per D4 series were made after filing of that complaint. Except that no other evidence 7 Crl. R. P.No.1939 of 2014 was adduced on the side of the revision petitioner to prove that, the blank signed cheque given as security when bid the chitties was mis-used and the complaint was filed. So under the circumstances, court below was perfectly justified in rejecting the contentions of the revision petitioner and accepting the evidence of PW1 and convicting the appellant for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference. 9. As regards the sentence is concerned, the court below sentenced the revision petitioner to undergo simple imprisonment for six months and also to pay ₹3,12,000/- (after deducting the amount paid during the pendency of the case, before the court below from the cheque amount) to the complainant as compensation, in default to undergo simple imprisonment for five months more under Section 357(3) of the Code of Criminal Procedure. The appellate court had reduced the substantive 8 Crl. R. P.No.1939 of 2014 sentence to imprisonment till rising of the court and default sentence to three months but set aside the compensation awarded. So maximum leniency has been shown by the court below in imposing the sentence, which cannot be said to be excessive or harsh and this do not call for any interference. 10. While this court is about to dispose of the case, the counsel for the revision petitioner prayed six months time for payment of the amount. Considering the amount involved, this court feels that, that is reasonable. So the revision petitioner is granted time till 19.05.2015 to pay the amount, till then, the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of payment of the same before the court below and the complainant appears before the court below and acknowledges the payment of the same, then court below is directed to treat the same as substantial compliance of the 9 Crl. R. P.No.1939 of 2014 direction to pay compensation by the courts below and confirmed by this court and record the same in the respective registers and allow the revision petitioner to serve substantive sentence of imprisonment, till rising of the court, as provided in the decision reported in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** . 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