DevAN K v. Sree Gokulam Chits and Finance Co. (P) Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** **Crl.Rev.Pet.No. 1374 of 2013 () --------------------------------** **CRL.A 584/2010 OF ADDITIONAL SESSIONS AD HOC(FAST TRACK) COURT-III, PALAKKAD. C.C.184/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PALAKKAD.** **.......** ## **REVISION PETITIONERS/APPELLANT/ACCUSED:** **---------------------------------------** **DEVAN K, S/O.RAMAN, KALATHUKUNDIL HOUSE, VANIAMKULAM P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** ## **RESPONDENTS/RESPONDENTS:** **------------------------** **1. SREE GOKULAM CHITS AND FINANCE CO.(P) LTD., DIVISIONAL OFFICE, SANOJ TOWERS, OPP.K.S.R.T.C. BUS STAND, SHORNUR ROAD, PALAKKAD, REPRESENTED BY MR.K.K.SUBHASH KUMAR, S/O.KRISHNAN, RESIDING AT PULINELLI, KOTTAYI, PALAKKAD - 678 572.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.MAHESH V RAMAKRISHNAN R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.R.P.No.1374 of 2013 ----------------------------------------Dated this the 4[th] day of October, 2017 ## _**O R D E R**_ The petitioner has been arrayed as accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.184 of 2009 on the file of the Judicial First Class Magistrate Court-III, Palakkad, instituted on the basis of a complaint filed by the first respondent chit Company. 2. Exhibit-P1 dishonoured cheque dated 15.4.2008 is for Rs.7,48,193/-. The trial court as per the impugned judgment rendered on 17.9.2010 had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for three months and to pay an amount of Rs.7,48,193/- (cheque amount) as compensation to the complainant in terms of Section 357(3) of the Cr.P.C. and in default thereof, to undergo simple imprisonment for a further period of three months. The petitioner had preferred Criminal Appeal No.584 of 2010 before the Sessions Court, Palakkad. The appellate court concerned [Court of the Additional Sessions Judge Adhoc-III (Fast Track Court-III) Palakkad] as per the impugned judgment rendered on 10.4.2013 has confirmed the abovesaid conviction and has modified the substantive sentence of simple imprisonment for three : **:2::** Crl.R.P.No.1374/13 months by reducing the same to imprisonment till the rising of the court and has further confirmed the compensation amount of Rs.7,48,193/along with the default sentence clause of simple imprisonment for three months. It is these judgments of both the courts below that are under challenge in the present revisional proceedings. 3. Heard Sri.P.Jayaram, learned counsel appearing for the revision petitioner/accused, Sri.Mahesh.V.Ramakrishnan, learned counsel appearing for R1/complainant and Sri.Jestin Mathew, learned prosecutor appearing for R2/State. 4. The brief of the allegation in the complaint is to the effect that the accused had entered into a chit transaction with the complainant chit Company and that the total sala amount involved in the transaction was Rs.10,00,000/-. The chit was prized in his favour and the amount in that regard was disbursed to him. The accused had later defaulted payments which resulted in an overall liability of Rs.7,48,193/-. In order to discharge the said liability, the accused had executed and issued Exhibit-P1 cheque dated 15.4.2008 for the abovesaid amount drawn from his account and payable in favour of the complainant chit Company. The cheque when presented resulted in dishonour on the ground of _‘insufficiency of funds’_ as per Exhibits-P2 and P3 Bank memos dated 5.5.2008 and dated 8.5.2008 respectively. Thereupon the complainant Company had issued Exhibit-P4 statutory demand notice : **:3::** Crl.R.P.No.1374/13 dated 22.5.2008 under Section 138(b) of the Negotiable Instruments Act, calling upon the accused to pay off the amount covered by the said cheque within a period of 15 days from the date of receipt of the said notice. The said notice sent by registered post was duly served on the accused as per Exhibits-P5 and P6. The accused had given a reply notice as per Exhibit-P7 dated 23.6.2008 stating that he had issued a blank signed cheque, promissory note and title deeds as security and he had paid a total amount of Rs.4,29,500/- and that he has not executed Exhibit-P1 cheque and that the liability amount in Exhibit-P1 cheque is not correct. Thereupon the complainant after fulfilling the necessary procedural formalities has instituted the above complaint which resulted in the trial. 5. During trial, the complainant has adduced oral evidence through PW1 and PW2 and has marked Exhibits-P1 to P10 documents. The defence has not adduced any oral or documentary evidence. 6. PW1, who is an authorised representative of the complainant Company, has given evidence broadly in tune with the contents of the complaint. No serious arguments have been raised before this Court as to the correctness and legality of the findings made by both the courts below that the complainant has indeed fulfilled all the necessary formalities for the valid initiation of the present complaint. The heart of the controversy is sought to be resolved by the complainant : **:4::** Crl.R.P.No.1374/13 through Exhibits-P1 to P10 documents. Exhibits-P1 to P9 documents have been produced by the complainant along with the complaint which was filed on 20.6.2008. It is after adducing evidence through PW1 that the complainant has produced and marked Exhibit-P10 promissory note dated 28.3.2005 through PW2. PW1 has clearly admitted that an amount of Rs.4,25,600/- has been paid by the accused. Exhibit-P9 is the ledger extract of the chit transactions in question which clearly shows that the commencement of the chit is on 13.8.2004 and the termination of the chit is on 13.8.2006. The prized amount actually given to the petitioner is Rs.3,77,600/- and the dividend amount due to the petitioner is Rs.48,000/-. Thus altogether an amount of Rs.4,25,600/- (Rs.3,77,600/-+Rs.48,000/-=Rs.4,25,600/-) has been clearly shown to have been paid by the petitioner to the complainant chit Company as per the entries in Exhibit-P9 ledger statement. The sala amount is Rs.10,00,000/- and therefore, the balance amount payable by the petitioner is Rs.5,74,400/- (viz. Rs.10,00,000/- - Rs.4,25,600/- = Rs.5,74,400/-). This is the principal amount payable by the petitioner. As per Exhibit-P10 promissory note dated 28.3.2005, the petitioner has agreed to pay interest @18% per annum on the defaulted amount. The defaulted amount is computable from the date of termination of the chit, viz.13.8.2006. Thus the interest amount payable by the petitioner on the defaulted principal amount of Rs.5,74,400/- @ 18% per annum from Crl.R.P.No.1374/13 : **:5::** 13.8.2006 (date of termination of the chit) up to 15.4.2008 (date of issuance of Exhibit-P1 cheque) is Rs.1,73,793/-. Thus the total amount payable by the petitioner as on 15.4.2008 (date of issuance of Exhibit P1 cheque) is Rs.7,48,193/- (viz.Rs.5,74,400/- + Rs.1,73,793/- = Rs.7,48,193/-). This is the figure that is reflected in Exhibit-P1 cheque. Therefore, the contention raised by the petitioner that the cheque amount is more than the actual liability owed by the petitioner is untenable and unsustainable. It is contended by Sri.P.Jayaram, learned counsel appearing for the petitioner that reliance placed by the courts below on Exhibit-P10 promissory note is illegal and improper in as much as the said document is not supported by the averments in the complaint. Much emphasis has been placed by the petitioner on the fact that if Exhibit-P10 was actually available, then the same would have found a place in the averments in the complaint and that in such a case, the complainant could have easily produced Exhibit-P10 along with the complaint filed on 20.6.2008. It is true that Exhibit-P10 promissory note 28.3.2005 has not been produced along with the documents enlisted in the complaint filed on 20.6.2008 and Exhibit-P10 is produced and marked subsequently when PW2 was examined to give evidence. Even in Exhibit-P7 reply notice dated 23.6.2008, the petitioner has clearly stated that a promissory note was taken from the petitioner at the time of prizing of the chit amount. Other than the fact : **:6::** Crl.R.P.No.1374/13 that Exhibit-P10 has been belatedly produced, no other adverse circumstances has been brought to the notice of both the courts below to even remotely establish that Exhibit-P10 is fabricated or that reliance cannot be placed on such a document. Therefore, the reliance placed by both the courts below on Exhibit-P10 promissory note cannot be said to be illegal or bad in law. Exhibit-P10 would clearly show that the interest rate agreed between the petitioner and the complainant Company is 18% per annum. Since that is the position, the facts and figures in Exhibit-P9 ledger statement would clearly show that the liability figure of Rs.7,48,193/- has been correctly reflected in Exhibit-P1 cheque. It is in the light of all these aspects both the courts below have come to the considered conclusion that the petitioner is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. These concurrent finding of facts made on a concurrent basis by the courts below cannot be said to be vitiated by gross illegality or perversity. Therefore, this Court is not in a position to interfere with such considered finding of facts regarding the conviction of the petitioner by taking recourse to the revisional powers conferred on this Court. 7. Coming to the sentence in this case, it is seen that the appellate court has liberally modified and reduced the substantive sentence to simple imprisonment till the rising of the court. Moreover, : **:7::** Crl.R.P.No.1374/13 both the courts below have ordered to award compensation amount of Rs.7,48,193/-, which is the cheque amount. The Apex Court in the decision in _**R.Vijayan v. Baby and another**_ reported in _**(2012) 1 SCC 260**_ has held that the criminal courts could award interest up to 9% per annum as compensation on the cheque amount from the date of cheque up to the date of realisation, apart from the cheque amount. In the instant case, both the courts below have leniently taken a view in favour of the accused and has awarded only the cheque amount as compensation. 8. Sri.P.Jayaram, learned counsel appearing for the revision petitioner/accused, submits that in case this Court is so inclined to confirm the conviction, sentence and compensation amount, then this Court may grant eight months’ time to the petitioner to pay the compensation amount to the complainant. The said submission made by the petitioner is not seriously objected to by the respondent/complainant Company. 9. Accordingly, the following orders and directions are passed : - _(i) The impugned conviction, sentence of imprisonment till the rising of the court, compensation amount of Rs.7,48,193/-, default sentence clause of three months’ simple imprisonment, etc. are confirmed in this case._ - _(ii) The petitioner is given eight months' time from 15.10.2017 to pay the compensation amount of Rs.7,48,193/- directly to the_ : **:8::** Crl.R.P.No.1374/13 _complainant Company. On receiving such payments, the complainant will issue necessary receipts evidencing such payments in order to enable the accused to present the same before the trial court to satisfy the said court about such payments._ - _(iii) The petitioner shall personally appear before the trial court at 11 A.M. on any day on or before 16.6.2018 to suffer the imprisonment till the rising of the court and to satisfy the said court about payment of the total compensation amount directly to the petitioner._ - _(iv) On default of the petitioner to pay the said amount, he will have to undergo simple imprisonment for a period of three months._ - _(v) Until 16.6.2018, all further coercive steps for execution of the impugned sentence in this case will stand deferred._ The Registry will forward a copy of this order to the trial court for necessary information. With these observations and directions, the Criminal Revision Petition will stand finally disposed of. sd/- **ALEXANDER THOMAS JUDGE** csl P.A. to Judge // true copy//