Eapen K. Kurian v. State of Kerala and T. M. Nazeer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940 ## **Crl.Rev.Pet.No. 146 of 2015** CRA 168/2013 of ADDL.SESSUIBS COURT,KOTTAYAM ST 16/2013 of J.M.F.C. V, KOTTAYAM ## REVISION PETITIONER(S)/APPELLANT/ACCUSED EAPEN K.KURIAN PADINJAREKOLLETTU HOUSE, VELOOR KARA, PAMPADY VILLAGE, KOTTAYAM DISTRICT, PIN 686 501. BY ADV.SRI.K.M.VARGHESE ## RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT: ## 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ## 2. T.M.NAZEER, S/O.MOHAMMED KUNJU RAWTHER, THAZHATHEDATHU HOUSE, KANGAZHA KARA, PATHANAD, CHANGANACHERRY, PIN: 686 541. R2 BY ADV. SRI.S.NIDHEESH R1 BY PUBLIC PROSECUTOR, SHRI B JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.146 of 2015 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of June 2018 ## O R D E R The revision petitioner was convicted and sentenced concurrently by the courts below under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act'). 2. Heard. 3. The learned counsel for the revision petitioner has argued that even though the cheque in question was issued by the revision petitioner without putting the date, the complainant did not examine the person who had written the date in the cheque and in the said circumstances, the conviction and sentence passed by the courts below cannot Crl.R.P. No.146/15 : 2 : be sustained. The learned counsel relied on the decision of the learned Single Judge of this court in Santhi v. Mary Sherly [2011(3) KLT 273] to buttress his argument. In Santhi (supra), the learned Single Judge observed that if the cheque is written not by the accused, the person who actually wrote in the cheque can be examined to prove that he filled up the cheque, under the instruction of the accused or at his instance. The court further held in Santhi (supra) that if such evidence is not available, the prosecution can establish execution by placing circumstantial evidence either oral or documentary before the court. In this case, PW1 clearly stated that the date in the cheque in question was written by the Accountant of the revision petitioner in the presence of PW1. Having gone through the evidence of PW1, I do not find any reason to dis-believe his evidence Crl.R.P. No.146/15 : 3 : that the date in the cheque was written by the Accountant of the revision petitioner. Therefore, the argument in this regard cannot be accepted. 4. The learned counsel for the revision petitioner has further argued that the revision petitioner had re-paid the entire amount covered by Ext.P2 cheque on the date of its issuance itself and in the said circumstances, the conviction and sentence passed by the courts below cannot be sustained. It is undisputed that the property of the revision petitioner was agreed to be purchased by the complainant and the revision petitioner received an amount of Rs.16.5 lakhs from the complainant as advance sale consideration. It is also admitted by both sides that the revision petitioner had repaid an amount of Rs.12.5 lakhs as the agreement for sale was rescinded. It is further admitted by both sides that the Crl.R.P. No.146/15 : 4 : revision petitioner agreed to pay Rs.50,000/- over and above the balance amount of Rs.4,00,000/- received by the revision petitioner from the complainant as advance sale consideration. Thus, it is admitted by both sides that an amount of Rs.4.5 lakhs was agreed to be paid by the revision petitioner to the complainant and for that purpose, Ext.P2 cheque was issued by the revision petitioner. The only contention of the revision petitioner is that in the evening of the same day, the revision petitioner paid the entire amount covered by Ext.P2 cheque to the complainant. However, the complainant did not return the cheque. No document is there to prove that the revision petitioner paid Rs.4.5 lakhs to the complainant after the issuance of Ext.P2 cheque. There is also no convincing explanation from the revision petitioner as to why the Crl.R.P. No.146/15 : 5 : amount of Rs.4.5 lakhs was paid by the revision petitioner without receiving back the cheque from the complainant. No reason was also stated by DW1 as to why no receipt was also received by DW1 from the complainant when the money was paid. Having evaluated the evidence, the courts below found that the plea of discharge raised by the revision petitioner cannot be accepted. Having gone through the relevant inputs, I am also satisfied that the plea of discharge raised by the revision petitioner cannot be accepted. For the said reason, the argument in this regard advanced by the learned counsel for the revision petitioner is devoid of merits. 5. The Apex Court in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd [2016(4) KHC 951] held that the crucial question to Crl.R.P. No.146/15 : 6 : determine the applicability of Section 138 of the N.I. Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents the advance payment without there being subsisting debt or liability. The Apex Court in Sampelly Satyanarayana Rao (supra) further held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises and it is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. In this case, having gone through the relevant inputs, including the evidence of PW1, I am satisfied that the revision petitioner could not rebut the presumption. 6. The courts below correctly appreciated the oral and Crl.R.P. No.146/15 : 7 : documentary evidence adduced by the parties and concurrently found that the revision petitioner executed Ext.P2 cheque as contemplated under Section 138 of the N.I. Act and committed the offence under Section 138 of the N.I. Act. No material is available before the court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding of conviction by the courts below under Section 138 of the N.I. Act does not warrant any interference by this court. 7. The learned counsel for the revision petitioner has pleaded for leniency in the matter of sentence stating that the revision petitioner is laid up due to cardiac stroke and hence, he is not in a position to raise huge amount to pay Crl.R.P. No.146/15 : 8 : the fine. Out of the amount of Rs.4,50,000/- covered by Ext.P2 cheque, the actual amount paid by the complainant was Rs.4,00,000/- and the compensation amount agreed to be paid by the parties was Rs.50,000/-. Considering the facts and circumstances of the case, including the submission of the learned counsel for the revision petitioner and the amount covered by Ext.P2 cheque, I am of the view that the sentence awarded by the courts below can be modified and reduced to a fine of Rs.4,50,000/(Rupees four lakh fifty thousand only) and in default to simple imprisonment for two months, to meet the ends of justice. It is ordered accordingly. If the fine amount is realised, the entire amount shall be given to the complainant as compensation under Section 357(1)(b) Cr.P.C. Crl.R.P. No.146/15 : 9 : In the result, this revision petition stands allowed in part as above. The revision petitioner is granted ten months to pay the fine, as requested by the learned counsel for the revision petitioner. Needless to state that if the revision petitioner had already deposited any amount before the trial court, pursuant to the direction of this court or the lower appellate court, the said amount will be treated as part payment of the fine directed in this order. ## **sd B.SUDHEENDRA KUMAR, JUDGE** _dl/22.6.18_ _// True copy // PA to Judge_