D.N. Sukumaran v. K.G. Thankachan and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933** **Crl.Rev.Pet.No. 560 of 2003(B)** **------------------------------------** **ST.51/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PALA CRA.74/1999 of ADDL.SESSIONS (SPL.) COURT, KOTTAYAM ...........................................** ## **REVN. PETITIONER(S): APPELLANT/ACCUSED :** **------------------------------------------------------------------** **D.N. SUKUMARAN, DEVASWOMPADAVIL VEEDU, KURICHITHANAM KARA, KURICHITHANAM VILLAGE.** ## **BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SARITHA DAVID CHUNKATH** ## **RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE :** **-----------------------------------------------------------------------------------------** **1. K.G. THANKACHAN, KURIKATTUKUNNEL VEEDU, CHETTUKULAM KARA, UZHAVOOR VILLAGE.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY SMT.SEENA R., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON 20/12/2011 PASSED THE FOLLOWING:** **AMV** ## **S.S.SATHEESACHANDRAN, J.** **-----------------------------------------------** **Crl.R.P.No.560 of 2003** **----------------------------------------------Dated this the 20[th] day of December, 2011** ## **O R D E R** The accused who stands convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) concurrently by the two courts below, has filed this revision. The 1[st] respondent is the complainant. Sentence imposed as modified by the Sessions Judge turning down the appeal of the accused is simple imprisonment for three months and fine of Rs.5,000/- with default term of simple imprisonment for one month more. 2. Ext.P1 cheque for a sum of Rs.87,000/was issued by the accused towards discharge of a loan availed from him and that instrument, when presented for encashment, was returned with the endorsement “insufficiency of funds” in the ## **Crl.R.P.No.560 of 2003** ## **:: 2 ::** account of the accused and statutory notice issued intimating dishonour was acknowledged, but not responded with reply or payment, was the case of the complainant. To prove his case, complainant got himself examined as PW.1 and also the Branch Manager of the Bank in which the accused maintained his account, as PW.2, and exhibited Exts.P1 to P6. The accused had denied the execution and also transaction with the complainant contending that Ext.P1 had been given as a security to another to secure his employment in his curry powder business. The learned magistrate accepted the case of the complainant to hold the accused guilty, and founded a conviction against him for the offence imputed under Section 138 of the Act. The learned Sessions Judge, after reappraisal of the evidence, affirmed the conclusion formed by the magistrate and turned ## **Crl.R.P.No.560 of 2003** ## **:: 3 ::** down the appeal of the accused assailing his conviction. 3. Before the appellate court, the accused produced a copy of the judgment rendered in the civil suit, which was filed by the complainant for realisation of the money covered under the cheque. The dismissal of that suit was projected to assail his conviction. Copy of the judgment in the suit was produced and exhibited as Ext.D1 in appeal. The appellate court found that Ext.D1 judgment is not relevant and it does not affect in any way the conviction rendered against the accused by the trial magistrate. 4. Challenge canvassed by the learned counsel for the revision petitioner, to assail the conviction concurrently rendered against the accused, is confined to a solitary ground that both the courts below went wrong in accepting the case ## **Crl.R.P.No.560 of 2003** ## **:: 4 ::** of the complainant without proof over the execution of the cheque and also the transaction alleged between the complainant and the accused, both of which had been disputed and denied by the accused. To prove the execution of the cheque and also the transaction the complainant has not let in any evidence other than his evidence as PW.1, which was hardly sufficient to enter a finding on such disputed questions, is the submission of the counsel. Reliance is placed on Kamalammal v. Mohanan (2006 (3) KLT 972), Bhaskaran Nair v. Mohanan (2009 (2) KLT 897), Shaju N.I. v. T.K. Paulose and Another (2009 (3) KHC 626), Joseph v. Gladis Sasi (2010 (3) KLT 379) and Santhi C. v. Mary Sherly and Another (2011 (3) KHC 22) to contend that there could be no presumption over the execution of a cheque where it stands disputed, and in such a case only on proof of due execution statutory ## **Crl.R.P.No.560 of 2003** ## **:: 5 ::** presumption covered under Section 139 of the Act that the instrument had been issued in discharge of a debt or liability can be canvassed by the payee or the holder in due course, as the case may be. Even on the evidence of the complainant as PW.1, it is submitted that his version was that the cheque duly filed up and signed was brought to his house and handed over by the accused, which, according to the counsel, clearly demonstrated that he too did not witness the execution of the instrument. When that be the case let in by the complainant, conviction rendered against the accused without there being evidence proving the due execution of the cheque, which was disputed, is unsustainable under law, and it is liable to be interfered with in revision, submits the counsel. 5. I have perused the records of the case. I do not find any merit in the challenge raised by ## **Crl.R.P.No.560 of 2003** ## **:: 6 ::** the counsel to assail the conviction concurrently rendered by the two courts below against the accused on the basis of the reported decisions cited contending that the execution of the cheque denied by the accused has not been established satisfactorily in the case. Ext.P1 admittedly arose from an account maintained by the accused. That cheque, on presentation, was dishonoured due to insufficiency of funds in his account maintained in a bank. Statutory notice issued intimating such dishonour was acknowledged, but not responded with reply or payment. The accused has not denied his signature in the instrument nor that the other entries entered in the instrument were not at his hand. His challenge was only that the cheque was issued as security to another, one Murali, to secure his employment in his curry powder business operation. That defence was sought to be ## **Crl.R.P.No.560 of 2003** ## **:: 7 ::** projected through suggestive questions put to the complainant during the cross-examination of the complainant examined as PW.1. Vague hunches and suggestions, without anything more, have no place in criminal trial. Whatever suggestions put by the accused, as indicated above, had been denied in unequivocal terms by the complainant. If the suggestion put to the complainant to deny the execution of the cheque was that it was handed over to another as security, when questioned under Section 313 of the Code of Criminal Procedure {for short “the Code”}, the only plea that was raised by the accused was denial of the issue of the cheque. Even in a case where the execution is denied by the accused, there is no inhibition under law in accepting the evidence of the complainant, that alone, to enter a finding on the due execution of the cheque. There is no merit in the challenge that ## **Crl.R.P.No.560 of 2003** ## **:: 8 ::** to prove execution of the cheque, the actual subscribing of the signature in the instrument by the maker has to be witnessed and evidence thereof to be adduced in the case. Where a cheque drawn and handed over from an account maintained by the accused in a bank and handed over to another, towards the discharge of a debt or liability, part or whole, if dishonoured on its presentation, due to insufficiency of funds or it exceeded the arrangement with the bank, the offence under Section 138 of the Act as against him is complete. True, to prosecute him for such offence, the payee or the holder in due course has to comply with the mandatory requirements of issuing a notice intimating dishonour and demanding the sum under the instrument and also filing of the complaint, both of them, within the period prescribed by the Act, to enable the court to take cognizance of the ## **Crl.R.P.No.560 of 2003** ## **:: 9 ::** offence on his complaint. When such be the case, where the two courts have found that the evidence tendered by the complainant examined as PW.1 is reliable, trustworthy and convincing to hold that the cheque had been issued to him by the accused in discharge of a debt or liability as alleged by him and that too, in the proved facts and circumstances of the case that no reply was sent to the statutory notiece, there is no merit in the challenge raised against the conviction concurrently rendered against the accused. The Apex Court in Rangappa v. Mohan (2010 (2) KLT 682 (SC)), in which case also a defence denying execution was canvassed by the accused has held that a reverse onus is cast upon the drawer and a statutory presumption that the cheque has been issued towards discharge of a legally enforceable debt or liability is available to the payee or ## **Crl.R.P.No.560 of 2003** ## **:: 10 ::** holder in due course. The decisions relied on by the counsel, referred to above, have no application to the facts of this case. The execution of the cheque, though denied by the accused has been found established by the evidence of the complainant and also other proved facts and circumstances presented in the case. When that be so, that the accused has set up such a defence to relieve him from the prosecution, that alone, would no way assist him. There is no merit in the challenge against the conviction. 6. Sentence imposed against the accused directs him incarceration for a period of three months apart from payment of the fine fixed. Liability arising under a cheque is primarily a civil liability. Though the dishonour of cheque has now been made an offence in awarding sentence against the drawer of such instrument, on his ## **Crl.R.P.No.560 of 2003** ## **:: 11 ::** conviction, the approach of the court should be more to compensate the complainant than be punitive. Of course, if exceptional circumstances are made out in the case, harsh sentence imposing imprisonment for a term has to be resorted to. Other than that he has set up a false defence denying the execution of the cheque no exceptional circumstance has been made out in the case to impose a sentence of imprisonment for a period of three months. So much so, I find that the substantive term of imprisonment can be reduced providing adequate compensation to the complainant under Section 357(3) of the Code, vacating and modifying the punishment of fine. 7. Affirming the conviction of the accused, sentence of substantive term of imprisonment imposed against him is reduced to imprisonment till the rising of the court, and, ## **Crl.R.P.No.560 of 2003** ## **:: 12 ::** vacating the fine, he is directed to pay compensation of Rs.87,000/-, the cheque amount, to the complainant with default term of simple imprisonment for two months. He is directed to appear before the magistrate on 30.01.2012, to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and non-payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//