## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941**
**Crl.Rev.Pet.No.1302 OF 2019**
**IN CRA 277/2016 OF ADDITIONAL SESSIONS COURT-I,MAVELIKKARA IN ST 2243/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, HARIPAD**
## **REVISION PETITIONER/APPELLANT/ACCUSED:**
**GEETHA AGED 56 YEARS W/O.BALAKRISHNA, KARTHIKA, MUTHUKULAM NORTH MURI, CHULATHERUVU P.O., MUTHUKULAM VILLAGE.**
## **BY ADV. SRI.K.R.SUNIL**
## **RESPONDENTS/COMPLAINANT:**
**1 RATHI. R. NAIR AGED 31 YEARS D/O.SREEDEVI NARI, KARUKAYIL, KANNIMEL AMURI, MUTHUKULAM VILLAGE-690 506, ALAPPUZHA DISTRICT.**
**2 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH CURT OF KERALA, ERNAKULAM PIN 682 031**
## **SRI C N PRABHAKARAN-SR PP**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.12.2019, THE COURT ON 09.12.2019 PASSED THE FOLLOWING:**
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## **R.NARAYANA PISHARADI, J**
************************
Crl.R.P.No.1302 of 2019
---------------------------------------------Dated this the 9[th] day of December, 2019
## **O R D E R**
The revision petitioner is the accused in the case S.T.No.2243/2015 on the file of the Court of the Judicial First Class Magistrate-II, Haripad.
2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted her thereunder and sentenced her to undergo simple imprisonment for a period of three months and directed her to pay an amount of Rs.6,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months.
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3. The petitioner preferred Crl.Appeal.No.277/2016 before the Court of Session, challenging the conviction entered against her and the sentence imposed on her by the trial court. The appellate court confirmed the conviction as well as the sentence and dismissed the appeal. The concurrent verdicts of guilty, conviction and sentence passed against the petitioner by the courts below are challenged in this revision petition.
4. Heard learned counsel for the revision petitioner.
5. The case of the complainant is as follows: The complainant and the accused were acquainted with each other. On 06.06.2015, the accused borrowed Rs.6,00,000/- from the complainant. On the same day, the accused issued a cheque dated 25.07.2015 to the complainant towards repayment of the amount. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a notice to the accused demanding payment of the amount of the cheque. The accused received the notice. She did not send any
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reply. She did not pay the amount.
6. During the trial of the case, the complainant got herself examined as PW1 and Exhibits P1 to P8 were marked on her side. DW1 was examined and ExtD1 series documents were marked on the side of the accused.
7. When examined as PW1, the complainant gave evidence that the accused borrowed Rs.6,00,000/- from her. She has also given evidence that the accused had brought a cheque, with entries already made therein, and that the accused signed the cheque in her presence and gave it to her.
8. The plea of the accused was that she had no financial transaction with the complainant. According to the accused, her friend Sindhu Santhosh had borrowed an amount of Rs.2,00,000/- from the father of the complainant in the year 2012. Then, she had given a signed blank cheque to the father of the complainant as security. It is the plea of the accused that, after the demise of her father, the complainant has misused the cheque.
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9. No reliable evidence was adduced by the accused to prove the aforesaid plea. Sindhu Santhosh was not examined by her. No evidence was adduced by the accused to prove that there was any transaction between Sindhu Santhosh and the father of the complainant.
10. Of course, the accused examined her husband as DW1. The complainant had got a plea that the accused had told her that she would repay the amount on getting the retirement benefits of her husband. DW1 was examined to prove that he had retired from service one year prior to the alleged transaction. The fact that DW1 had retired one year prior to the transaction alleged by the complainant would not mean that the case set up by the complainant is false. As rightly pointed out by the courts below, the complainant had not verified the truth of the representation made to her by the accused regarding the retirement of her husband. Further, the fact that the husband of the accused had retired prior to the date of the transaction, does
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not mean that he had received the entire retirement benefits at the time of retirement itself.
11. The complainant had sent notice to the accused demanding payment of the amount of the cheque. The accused had received the notice. She did not send any reply. If as a matter of fact, she did not owe Rs.6,00,000/- to the complainant and if she had not issued the cheque to the complainant in discharge of that liability and if the complainant had misused the cheque which was given to her father in any transaction with Sindhu Santhosh, the accused would have definitely sent a reply to the statutory notice. She would not have remained silent and inactive on receiving the notice from the complainant demanding a huge amount from her. The fact that the notice of demand, though duly received and acknowledged by the accused, did not evoke any response from her is a crucial circumstance against her.
12. Learned counsel for the petitioner contended that the notice sent by the complainant did not contain the particulars of
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the transaction alleged by the complainant and therefore, it was defective. There is no merit in this contention. The notice to be sent by the payee of the cheque need not contain the particulars of the transaction or the nature of the liability.
13. Learned counsel for the petitioner contended that the complainant has not proved her financial capacity to lend an amount of Rs.6,00,000/-. PW1 has given evidence that she is the proprietor of a shop. She has stated that her husband was employed in Muscat and that the amount which was given by her husband and father-in law constituted the amount which she gave the accused. There is no reason to disbelieve the evidence of PW1 in this regard. The complainant had also produced Exts.P7 and P8 bank passbooks to prove her case.
14. Even otherwise, there is no invariable rule that in all cases under Section 138 of the Act, the complainant has to prove his financial capacity or the source of money which was advanced to the accused. When the accused has failed to raise a probable plea and failed to rebut the presumption under Section
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139 of the Act, the fact that the complainant did not establish his financial capacity or source of money is of little consequence. The result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to want of evidence as regards source of funds are not of relevant consideration in examining whether the accused has been able to rebut the presumption or not. Innocuous discrepancies in the evidence of the complainant are also not material in such a situation (See **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876** ).
15. The courts below have properly appreciated the evidence and found that the accused had issued the cheque in discharge of the amount due to the complainant. I find no perversity or impropriety in the appreciation of the evidence by the courts below. Conviction of the accused for the offence under Section 138 of the Act is only to be confirmed.
16. Coming to the question of sentence, it is to be noted
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that an offence under Section 138 of the Act is almost in the nature of a civil wrong which has been given criminal overtones. Substantive sentence of imprisonment shall not be imposed except in exceptional cases. At the same time, direction to pay compensation to the complainant by way of restitution in regard to the loss on account of dishonour of the cheque, shall be made. It would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.
17. In **Vijayan v. Baby** ( **AIR 2012 SC 528** ), the Apex Court has held as follows:
_"The Courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but_
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## _interest thereon at a reasonable rate."_
18. In the instant case, the cheque is dated 25.07.2015. More than four years is now over. Interest at the rate of 9% on the cheque amount of Rs.6,00,000/-, for a period of four years, would come to Rs. 2,16,000/-. Then the total amount would come to Rs.8,16,000/-. However, taking a lenient view, I find that it is proper to set aside the substantive sentence of imprisonment imposed on the petitioner by the courts below and to impose a sentence of fine of Rs.7,00,000/- on her and award that amount as compensation to the complainant.
19. Consequently, the revision petition is allowed in part. Conviction of the petitioner/accused for the offence under Section 138 of the Act is confirmed. The sentence of simple imprisonment for a period of three months imposed on the petitioner/accused, which stands confirmed by the appellate court, is set aside. The petitioner/accused is sentenced to pay a fine of Rs.7,00,000/- (Rupees seven lakhs only) and in default of payment of fine, to undergo simple imprisonment for a period of
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one month. If the fine amount is realised, it shall be given to the complainant as compensation. The petitioner is granted a period of three months from today to deposit the fine amount in the trial court.
(sd/-)
**R.NARAYANA PISHARADI, JUDGE**
jsr
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**ANNEXURE A1 THE COPY OF THE ORDER DATED 30.01.2016 IN ST NO.2243/2015 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURTI, HARIPAD. ANNEXURE A2 THE CERTIFIED COPY OF THE JUDGMENT OF THE CRL.APPEAL NO.277 OF 2016 OF THE ADDITIONAL SESSIONS COURT MAVELIKKARA.**
RESPONDENTS' EXHIBITS: NIL
TRUE COPY PS TO JUDGE
