Girish Kumar v. Suresan and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** **Crl.Rev.Pet.No. 210 of 2017 () -------------------------------** **CRA 41/2016 of ADDL. SESSIONS COURT (SPL.), KOTTAYAM ST 10/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, VAIKOM** **REVISION PETITIONER/ APPELLANT/ ACCUSED: -------------------------------------------** **GIRISH KUMAR, S/O.GOPALAN PALAMTHANATHUMADAM, THEKKEKARA P.O., VAIKOM.** **BY ADVS.SRI.C.RAJENDRAN SRI.C.P.ANIL RAJ** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **--------------------------------------** **1. SURESAN, S/O.NEELAKANDAN CHETTIYAR, MUTTATHUVELICHIRA, KIZHAKKUMCHERRI THEKKEMURI, NADUVELLA VILLAGE, VAIKOM TALUK-686141.** **2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV. SRI. R.B. RAJESH** **R2 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** ALEXANDER THOMAS, J. ================== Crl.R.P.No. 210 of 2017 ================== Dated this the 19[th] day of June, 2017 O R D E R The petitioner is the accused in Summary Trial Case, S.T.No. 10/2014 on the file of the Judicial First Class Magistrate's Court-II, Vaikom, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1[st] respondent (complainant). The trial court as per the impugned judgment dated 20.1.2016 had convicted the petitioner and had sentenced him to undergo imprisonment till rising of the court and to pay compensation of Rs.90,000/- to the complainant under Sec.357(1)(b) of the Cr.P.C and in default thereof, the petitioner was sentenced to undergo simple imprisonment for a further period of 3 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.41/2016 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge-II [Special], Kotttayam). The appellate court as per the impugned appellate judgment dated 24.11.2016 had upheld the conviction and sentenced the petitioner to imprisonment till rising of the court and reduced the fine amount to pay Rs.60,000/- (which is the cheque amount), in default of payment of which, the petitioner was sentenced to suffer simple imprisonment for a further period of one month. It is aggrieved by the said findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read Crl.R.P.No.210/17 - : 2 :- with Sec.401 of the Cr.P.C. 2. Heard Sri.C.Rajendran, learned counsel appearing for the petitioner (accused), Sri.R.B.Rajesh, learned counsel appearing for R-1 (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-2 State. 3. The prosecution allegation is that towards the discharge of the liability owed to the complainant, the revision petitioner (accused) issued the instant Ext.P-1 cheque dated 15.5.2013 for an amount of Rs. 60,000/- drawn from the account of the accused and payable in favour of the complainant. The cheque when presented was dishonoured and after following the requisite statutory formalities including the issuance of statutory demand notice, etc. the complaint was initiated. The notice was unclaimed by the accused, etc. 4. During the trial the complainant has examined himself as P.W-1, and P.W-2 & P.W-3 and has marked Exts.P-1 to P-6 documents. The defence has not adduced any oral or documentary evidence. 5. On a perusal of the impugned judgments as well as the materials on record, it is seen that both the courts below after carefully evaluating the oral and documentary evidence adduced by the parties, have concurrently found that the revision petitioner has executed Ext.P-1 cheque as contemplated under Sec.138 of the N.I Act. The Crl.R.P.No.210/17 - : 3 :- defence set up by the revision petitioner was also repelled by the courts below. Since there are concurrent findings on facts, this Court can justifiably interfere in the revisional proceedings only if the said factual findings are perverse or incorrect. 6. However, Sri.C.Rajendran, learned counsel appearing for the petitioner has mainly raised a new contention, which has never been addressed before the courts below that the very case of the complainant is that the cheque in question has been dishonoured on the ground of “account closed”. It is contended that a learned Single Judge of this Court as per the judgment dated 5.7.2016 in the case Muralidharan.V. v. V.A.Kumaran, reported in 2016(3) KHC 845 has clearly held that offence under Sec.138 of the Negotiable Instruments Act will not be attracted in a case where account has been closed prior to drawal of the cheque and in such case, only offence under Sec. 420 of the I.P.C. will be attracted. On this basis, Sri.C.Rajendran, learned counsel appearing for the revision petitioner accused would contend that in the case involving dishonoured cheque on the ground of “account closed”, then certainly the burden of proof casts on the complainant to establish before the trial court as to whether the account has been closed prior to drawal of the dishonoured cheque or after the drawal of the dishonoured cheque and only in a case, where it is established that the account closure is after the drawal of the impugned cheque, will the offence under Sec.138 of the N.I. Act would Crl.R.P.No.210/17 - : 4 :- lie, otherwise if the closure of the account is before the drawal of the cheque, the complaint under Sec.138 of the N.I. Act is not maintainable. That since this Court in V.Muralidharan's case supra has already held that if the account closure is prior to the drawal of the cheque, then only an offence under Sec. 420 of the I.P.C. is made out and if the onus of proving the fact that whether the account has been closed before the drawal of the cheque is placed on the accused, then it would amount to compelling him to adduce evidence, which may have the result of implicating him for the offence under Sec.420 of the I.P.C. Such a scenario would amount to direct and inevitable violation of the precious constitutional right guaranteed to an accused against self incrimination as engrafted in clause (2) of Art.20 of the Constitution of India. On this basis, it is contended by the petitioner that since the complainant has not adduced any evidence to show as to whether the account has been closed prior to or after the drawal of the cheque, the accused is clearly entitled for acquittal. But it is seen that the above judgment dated 5.7.2016 of the learned Single Judge of this Court in V.Muralidharan's case supra has been rendered without noticing the earlier judgments of this Court rendered by the Division Bench in Vathsan v. Japahari, reported in 2003(3) KLT 972 as well as a judgment dated 26.11.2015 of learned Single Judge of this Court in Bhaskaran T. & Anr. v. M.P.Mohandas & Anr. reported in 2016 (1) KHC 254 = 2016 (1) Crl.R.P.No.210/17 - : 5 :- KLD 156. It can be seen from a mere perusal of the aforecited Division Bench judgment reported in 2003 (3) KLT 972 as well as the judgment of the learned Single Judge in Bhaskaran.T. & Anr. v. M.P.Mohandas & Anr. reported in 2016(1) KHC 254, that it has been conclusively held therein that even if the account has been closed prior to the drawal of the cheque, the offence under Sec.138 of the Negotiable Instruments Act will get attracted. Therefore, considering these aspects, this Court in the judgment dated 25.5.2017 in Crl.R.P.No.600/2017 has held that the abovesaid view of the learned Single Judge in Muralidharan.V. v. V.A.Kumaran, reported in 2016(3) KHC 845, to the limited extent that no offence under Sec.138 of the Negotiable Instruments Act will be attracted in a case where the account closure is prior to the drawal of the cheque does not reflect the correct legal position insofar as the said decision of this Court has not reckoned the earlier view of the Division Bench in Vathsan's case reported in 2003 (3) KLT 972, as well as the decision in Bhaskaran's case supra. In the light of these aspects, this Court is constrained to overrule the abovesaid argument of Sri.C.Rajendran, learned counsel appearing for the petitioner. 7. In the light of these aspects, this Court is of the view that the concurrent findings of facts rendered by both the courts below are not amenable for revisional interference. 8. As regards the sentence in this case it is seen that trial court Crl.R.P.No.210/17 - : 6 :- has sentenced the petitioner to undergo imprisonment till rising of the court and to pay Rs.90,000/, which is 1½ times the cheque amount of Rs.60,000/- as fine . The appellate court has reduced the said fine amount to Rs.60,000/-, which is the cheque amount. Therefore, the impugned modified fine/compensation imposed by the appellate court cannot be said to be excessive or arbitrary. 9. Faced with this situation, Sri.C.Rajendran, learned counsel appearing for the petitioner would submit that in case this Court is so inclined to affirm the conviction and sentence, this Court may grant at least 8 months' time to pay the fine/compensation amount of Rs.60,000/- directly to the complainant. It is pointed out that the petitioner is in deep financial trouble and it will not be possible for him to raise such a amount within a short period. In the light of these aspects, the following orders and directions are issued: - i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act will stand confirmed. - ii) The impugned substantive sentence of imprisonment till rising of the court is also confirmed. - iii) The petitioner is given 8 months' time from 1.7.2017 to pay the said fine/compensation amount of Rs. 60,000/-. The revision petitioner will be at liberty to pay the amount directly the complainant. On payment of the amount, the complainant will issue receipts to the accused so that the accused can produce the same before the trial court to satisfy the said court about payment of the amount. - iv) The petitioner shall appear before the trial court at 11 a.m. on 5.3.2018 to receive the sentence of imprisonment till rising of the court and to satisfy the trial court about the payment of the fine/compensation amount. - v) On default of the payment of the compensation amount, the petitioner will Crl.R.P.No.210/17 - : 7 :- have to suffer simple imprisonment for a further period of one month. - vi) Until 5.3.2018 all further coercive steps taken against the petitioner in pursuance of the execution of the impugned warrant will stand deferred. - vii) On default of the petitioner either to appear before the trial court on 5.3.2018 or in default of paying the abovesaid amount, the trial court will be at liberty to proceed against the petitioner, in accordance with law. With these observations and directions, the Criminal Revision Petition stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge