Gangadharan v. Sree Gokulam Chits and Finance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P. BHAVADASAN** **FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933** **C.R.R.P. No:322 of 2012** **----------------------CRA. NO:790/2010 OF 1ST ADDITIONAL SESSIONS JUDGE, KOZHIKODE IN C.C. NO:713/2008 OF THE J.F.C.M.-I, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------** **GANGADHARAN, S/O. CHANDU, AGED 49 YEARS, PURAMBAGATH HOUSE, VILAKKOTTUR P.O, THUVAKKUNNU, KANNUR DISTRICT.** **BY ADVS. SRI. A. MOHAMED MUSTAQUE SRI. U.P. BALAKRISHNAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **-----------------------------------** **1. SREE GOKULAM CHITS AND FINANCE COMPANY LIMITED, DIVISIONAL OFFICE, VYKKOM MOHAMMED BASHEER ROAD, KOZHIKODE - 673 517 REPRESENTED BY LEGAL ASSISTANT SAVITHA K.V, AGED 32 YEARS.** **2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 011.** **BY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SP** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 322 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of February, 2012. ## **ORDER** The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.77,500/-, and in default, to undergo simple imprisonment for two months. It was also directed that if the fine amount is realized, the same shall be paid to the complainant under Section 357(1) Cr.P.C. In appeal, the appellate court confirmed the conviction but modified the sentence as one to undergo imprisonment till the rising of the court and to pay a fine of Rs.80,000/-, and in default to undergo simple imprisonment for one month. It was also directed that if the fine amount was realized, it should be paid to the complainant as compensation. Crl.R.P.322/2012. 2 2. The complaint is a Private Limited Company engaged in chit business. According to the complainant, the accused was a subscriber to chit No.J2F 797/20 conducted by the company. He auctioned the same and obtained prize money. Thereafter he defaulted in payment of instalments due from him. An amount of Rs.92,900/- is due from the accused towards the said transaction. After several demands for payment, the accused issued Ext.P2 cheque for the same amount. The cheque on presentation bounced for want of funds in the account of the accused. Notice issued to the accused was returned with the endorsement unclaimed. Hence the complaint was laid. 3. Cognizance of the offence was taken by the trial court. On appearance of the accused, he prayed for exemption under Section 205 Cr.P.C. and that was granted. Thereafter he was represented by his pleader. It was pleaded that the accused was not guilty. Complainant examined their authorised representative as P.W.1 and Crl.R.P.322/2012. 3 had Exts.P1 to P8 marked. It is seen from the judgment of the trial court that questioning under Section 313 was dispensed with. However, the accused filed a statement in which it is stated that he had a chit transaction with the complainant company. He also accepted that he bid the chit and received the prize money. His specific case was that he was a subscriber to another chit for a sum of Rs.1,00,000/- conducted by Nadapuram branch of the complainant company and the price amount in that chit was adjusted towards the chit in question. He disputed that he issued Ext.P2 cheque in discharge of any liability. According to him, the complainant had obtained a signed blank cheque at the time of disbursing the prize money and put forward a false case. He however chose to adduce no evidence. 4. The trial court on an evaluation of the evidence in the case came to the conclusion that the case put forward by the complainant has been established and Crl.R.P.322/2012. 4 that Ext.P2 cheque was infact issued for the discharge of the debt due to the company. Accordingly, the accused was found guilty. Conviction and sentence as already mentioned followed. In appeal, the appellate court confirmed the conviction and modified the sentence as mentioned earlier. 5. Learned counsel appearing for the revision petitioner mainly raised two points for consideration. They are, (i) that the complaint does not contain the essential ingredients to attract Section 138 N.I. Act., and (ii) it is not shown that P.W.1, who was examined on behalf of the Company is competent to lay the complaint. 6. Elaborating on the first argument, it was pointed out that the complaint does not mention that inspite of notice the amount remained unpaid and therefore the complaint was lodged. According to the learned counsel, unless all essential ingredients are pleaded, the complaint cannot be looked into. In the decision reported in **Mohammed Rasheed v. State of Kerala** (1993(2) Crl.R.P.322/2012. 5 K.L.T.1027) the essential allegations that are to be made in a complaint filed regarding the offence under Section 138 N.I. Act are given. On going through the decision as a whole, this court could not find that it is necessary to plead that inspite of notice the amount remained unpaid. The essential ingredients are:- (i) the cheque was drawn on an account maintained by the accused in a Bank (ii) that the cheque was dishonoured for want of funds in the account of the accused. It was these aspects which were treated as the essential pleadings necessary to attract Section 138 N.I. Act. 7. One may now have a look at the definition of 'complaint' contained in Cr.P.C. Section 2(d) defines complaint as follows: “2(d). “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Crl.R.P.322/2012. 6 Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;” 8. On going through Section 138 N.I. Act, it can be seen that the main ingredients necessary to attract the offence are (i) a cheque is drawn by a person on an account maintained by him, (ii) issued for discharge of any liability or debt (iii) the cheque is returned by the Bank indicating (iv) either the amount is insufficient, or it exceeds the amount arranged to be paid from that account. These are the essential ingredients to attract the offence punishable under Section 138 N.I.Act. The proviso only carves out certain conditions. In the decision relied on by the learned counsel for the revision petitioner, the issue considered was only regarding the main provision and not the proviso. The decision does go on to say that the conditions stated in Crl.R.P.322/2012. 7 the proviso have to be pleaded. Moreover, it is well settled that the complaint and the sworn statement have to be read together. Since the complaint contained necessary ingredients, the first contention of the revision petitioner has necessarily to fail. 9. As regards the second contention, it is pointed out that only a true copy is produced before the court below and that is insufficient to establish the competency of P.W.1 to lay the complaint. Unfortunately no such ground has been taken before either of the courts below and the competency of the person who laid the complaint was not in challenge at all. Moreover, Ext.P1 was admitted in evidence without any objection. In the light of the fact that this is a revision and at this stage the accused cannot be heard to contend that the person who laid the complaint was incompetent to do so and give evidence on behalf of the Company. Crl.R.P.322/2012. 8 10. Coming to the merits of the case, P.W.1 has given evidence regarding the transaction between the company and the accused. P.W.1 has spoken about the circumstances under which Ext.P2 cheque came to be issued in favour of the company. She has spoken about the presentation of the cheque and its dishonour for want of funds in the account of the accused. Records also show that the notice issued to the accused returned with the endorsement unclaimed. It is therefore clear that all the essential ingredients necessary to attract the offence has been made out in the case on hand. 11. It is interesting to note that the accused admits the chit transaction with the company. His definite case was one of discharge. His case was that he had issued two cheques to the company. He also admits that he defaulted in payment of the instalments. But his case was that he had bid the other chit and the prize money so received is adjusted towards the chit involved in the 9 Crl.R.P.322/2012. present proceedings. If that be the case, it is for him to establish the said fact. He made no efforts to do so. He should have atleast call for the records from the company. Having not taken any steps in this regard, his plea of discharge has been rightly found against. 12. The accused had not chosen to adduce any evidence in his defence. Once it is shown that the accused had issued the cheque as averred in the complaint, then the complainant has to take aid of the presumption available under Sections 139 and 118 N.I. Act. Then, the burden shifts to the accused to rebut the presumption. He could do so by adducing evidence on his own behalf or by relying on the complainant's evidence. He chose to adduce no evidence to establish that the complainant's evidence is insufficient to held the accused guilty and to rebut the presumption. It was under the above circumstances, the courts below have held that the accused was guilty of the Crl.R.P.322/2012. 10 offence punishable under Section 138 of the Negotiable Instruments Act. The findings rendered by the courts below on an appreciation of the evidence are not shown to be perverse. The result is that this revision is without merits and it liable to be dismissed. I do so. **P. BHAVADASAN, JUDGE** sb.