G. Hareendran v. B. Umesan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933** ## **CRRP.No. 2790 of 2011 ( )** **------------------------------CRA.938/2009 of II ADDL.SESSIONS COURT,TRIVANDRUM ST.51/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, THIRUVANANTHAPURAM** **................** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------------------------** **G.HAREENDRAN, S/O.GANGADHARAN PILLAI, PARAMBIL HOUSE T.C.25/3304 (1), (VRAC-12), OPPOSITE JUDICIAL OFFICERS QUARTERS, VANCHIYOOR, THIRUVANANTHAPURAM.** **BY ADV. SRI.GOPAKUMAR R.THALIYAL** **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------------** **1. B.UMESAN, S/O.BHARGAVAN, DWARAKA, T.C.4/744, KURAVANKONAM KOWDIAR, THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKUALM, KOCHI-682 031.** **R1 BY ADVS. SRI.BIJU BALAKRISHNAN SMT.V.S.RAKHEE** **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 2790 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of January, 2012. ## **ORDER** The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty and therefore he was convicted and sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs.1,00,000/- to the complainant under Section 357(3) Cr.P.C., and in default, to undergo simple imprisonment for three months. In appeal, the same was confirmed. 2. According to the complainant, he and the accused were close friends and there was a case pending before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram between the parties as C.C.216 of 2000 which was for commission of offence under Section 138 of the Negotiable Instruments Act. A compromise was entered into between the complainant and the accused in Crl.R.P.2790/2011. 2 the said case. The accused had issued a cheque for Rs.1,00,000/- dated 10.12.2005 and on the basis of the issuance of the cheque and the compromise entered into between the parties, the earlier case came to an end. The subsequent cheque issued by the accused was presented for encashment and it was returned for want of funds in the account of the accused. Statutory notice issued to the accused invoked a reply containing false statements. Since the amount remained unpaid, the complaint was lodged. 3. Cognizance of the offence was taken by the court below. On appearance of the accused before the court below, all legal formalities were completed and particulars of the offence were read out to the accused, to which he pleaded not guilty and claimed to be tried. Complainant examined himself as P.W.1 and Exts.P1to P6 were marked. After the close of the complainant's evidence, the accused was questioned under Section 313 Cr.P.C. Though he admitted the issuance of Ext.P1 cheque, it is pointed out by him that he and the complainant were Crl.R.P.2790/2011. 3 business partners and he had handed over signed documents and cheque leaves to the complainant in the year 1995. Subsequently the accused had retired from the partnership firm and thereafter there were disputes between the parties and the complainant refused to return the blank cheque and other documents to the accused. The case of the accused was that using one of those cheques the earlier complaint was laid and the complaint was taken on file as C.C.216 of 2000 and the complainant also filed O.S.584 of 1996. The suit was decreed and the accused was in prison for a period of 90 days. Subsequently, a settlement was arrived at between him and the complainant and he issued a cheque for Rs.1,00,000/-. It was claimed by him that since proceedings in O.S.584 of 1996 have now come to an end, the present complaint will not lie. He produced various documents in support of his claim. 4. The trial court, on an evaluation of the evidence in the case, came to the conclusion that the defence set up by the accused is without foundation and Crl.R.P.2790/2011. 4 that the complainant has succeeded in establishing that Ext.P1 cheque has been issued to discharge a debt due to him. The trial court has considered the defence set up and the decision reported in **Lalithkumar Sharma v. State of U.P.** ((2008) 5 SCC 638) and found that the principles laid down in the said case are not applicable to the case on hand. Finding that the offence has been made out, the trial court convicted and sentenced him as already mentioned. Appeal filed by the accused did not met with success. 5. Learned counsel for the revision petitioner pointed out that the courts below were not justified in coming to the conclusion that the principle laid down in the decision reported in **Lalithkumar Sharma's case** (supra) has no application to the facts of the present case. Learned counsel highlighted that the initial debt merged with the acquittal of the accused in the earlier case and O.S.584 of 1996 and no debt therefore remains to be discharged. It is also contended that the suit was decreed and the accused was in civil prison for 90 days and to ward off further Crl.R.P.2790/2011. 5 proceedings in the case that Ext.P1 cheque was issued by the accused and not as claimed by the complainant. These aspects were not considered by the courts below and that has resulted in miscarriage of justice. 6. Learned counsel appearing for the respondent on the other hand pointed out that it is clear that it was in order to end the earlier litigation that Ext.P1 cheque was issued and on that basis the accused was acquitted under Section 320(8) Cr.P.C. It is contended that the civil suit is an entirely different proceedings and it has no connection with the cheque in question. Learned counsel pointed out that both the courts below were right in coming to the conclusion that the principle laid down in the decision relied on by the accused has no application to the facts of the present case. 7. On going through the judgments of the courts below, it is seen that Ext.P1 cheque in question was obtained at the time of settling the earlier criminal proceedings and it was on that basis that the earlier Crl.R.P.2790/2011. 6 prosecution proceeding was closed acquitting the accused under Section 320(8) Cr.P.C. It is significant to notice that the issuance of the cheque is admitted. But the accused had a different story about the cheque. However, on going through the available materials, it is seen that the story put forward by the accused cannot be accepted for the simple reason that it is quite evident that Ext.P1 cheque was issued to end the earlier proceedings and in order to discharge the debt which was due to the complainant from the accused. 8. The fact is that he was in civil prison for 90 days in execution of the decree in a suit is of no help to him in the present proceedings. In the decision relied by the accused before the court below, the facts are entirely different and they have no comparison with the facts of the present case. As noticed by the courts below, during the pendency of the earlier proceedings that another cheque was issued by the accused to the complainant, on the basis of which the present complaint was laid. It was noticed by Crl.R.P.2790/2011. 7 the courts below that the first proceedings ended in conviction and under those circumstances it could not be said that the second cheque is issued to discharge the first debt. 9. In the case on hand, it is very clear that Ext.P1 cheque was issued to close the earlier prosecution and to discharge the debt due to the complainant. None of the documents produced by the defence will show that the debt that was due was discharged and Ext.P1 cheque was issued as claimed by the accused. 10. Both the courts below have considered the evidence in considerable detail and had come to an identical conclusion that Ext.P1 cheque was issued for discharge of a debt and that the cheque bounced for want of funds when presented for encashment. The finding is one of fact and no interference is called for under the revisional jurisdiction. 11. Faced with the above situation, learned counsel for the revision petitioner prays that some time may Crl.R.P.2790/2011. 8 be granted to the revision petitioner to pay the compensation amount so as to ward off the default sentence. 12. Considering the facts and circumstances of the case, and also the fact that there was a civil suit between the parties, it is felt that some time can be granted to the revision petitioner to effect payment of the compensation amount awarded by the courts below. In the result, while confirming the conviction and sentence imposed by courts below, the revision petitioner is granted four months from today to pay the compensation awarded by the courts below, failing which, the default clause will take effect. If any amount has been paid by the accused in terms of the orders of any court with regard to the transaction involved in this proceedings, that will be adjusted towards the compensation amount due to the complainant. Crl.R.P.2790/2011. 9 This revision petition is disposed of as above. **P. BHAVADASAN, JUDGE** sb.