Hamsa v. State of Kerala and Sree Gokulam Chit and Finance Co. Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 15TH DAY OF DECEMBER 2014/24TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 2132 of 2014 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A 175/2012 of ADDL. SESSIONS COURT - II, MANJERI DATED 29-08-2013** **AGAINST THE JUDGMENT IN ST 20/2012 of J.F.C.M.COURT-II, TIRUR DATED 03-05-2012** ## **REVISION PETITIONER/APPELLANT/ACCUSED:-:** **----------------------------------------** **HAMSA, AGED 43, S/O.KUNJALAVI, PARAPPURATH ILLATH, PARAMBIL HOUSE, THRIKKANDIYOOR AMSOM, KUMARAMANGALAM DESOM THIRUR THALUK.** **BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:-:** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **2. SREE GOKULAM CHIT AND FINANCE CO. PVT. LTD., NO.66, ACROT ROAD, CHENNAI, 24, REPRESENTED BY SHAJI K.P., AGED 33 YEARS, S/O.NARAYAN, ASSISTANT BUSINESS MANAGER.** **R2 BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA) R2 BY ADV. SRI.RAJ MOHAN R.PILLAI R1 BY PUBLIC PROSECUTOR SRI.N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.2132 of 2014 .................................................. Dated this the 15[th] day of November, 2014. ## **O R D E R** The accused in S.T.No.20/2012 on the file of the Judicial First Class Magistrate Court-II, Tirur is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the second respondent/complainant against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner was a subscriber to the chitty conducted by the complainant/second respondent and an amount of Rs.1,28,478/- was due as on 12.3.2010 and the revision petitioner had issued Ext.P1 cheque which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo and that was intimated to the complainant by their banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 2 Crl.R.P.No.2132 of 2014 postal acknowledgment. But he had not paid the amount. So he had committed the offence punishable under Section 138 of the Act .Hence the complaint. 3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the authorized representative of the complainant as authorized by Ext.P7 resolution was examined as PW1 and and Exts.P1 to P8 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that the cheque was given as security for the transaction when he joined the chitty and the company is not registered under the Chitties Act and it is not having any registration and so it cannot be said that the cheque was issued in discharge of any legally enforceable liability. No evidence was adduced on his side in defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him to to undergo Crl.R.P.No.2132 of 2014 3 imprisonment till the rising of court and also to pay the cheque amount of Rs.1,28,478/- as compensation, in default to undergo simple imprisonment for three months. Aggrieved by the same, the revision petitioner filed Crl.A.No.175/2012 before the Sessions Court, Manjeri, which was made over to the Second Additional Sessions Court, Manjeri for disposal and the learned Additional Sessions Judge dismissed the appeal by the impugned judgment. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Since the second respondent appeared through counsel in the delay petition and also expressed his willingness to appear in the revision also, this Court felt that the revision can be admitted, heard and disposed of on merit today itself after hearing both sides. So the revision is admitted, heard and disposed of today itself. 5. The counsel for the revision petitioner submitted that the evidence of PW1 is not sufficient to prove the case. Further, the chitty is not registered and as such it cannot be said that the cheque is issued in discharge of any legally enforceable debt. So he prayed for allowing the revision. Crl.R.P.No.2132 of 2014 4 6. The counsel for the second respondent submitted that the courts below have considered all these aspects and rightly convicted him and the concurrent findings do not call for any interference. 7. The case of the complainant in the complaint was that the revision petitioner was a subscriber to the chitty conducted by the complainant and as on the date of issue of the cheque an amount of Rs.1,28,478/- was due and in discharge of that liability, the revision petitioner issued Ext.P1 cheque. His case was that the blank signed cheque given as security was misused. As regards the first contention is concerned, in the decision reported in **Nadarajan v. Nadarajan** (1999 (2) KLT 512), this Court has held that merely because chitty was conducted in violation of the provisions of the Chitty Act will not absolve criminal liability of the revision petitioner initiated on the basis of the dishonour cheque under Section 138 of the Act. So, the submission made by the counsel for the revision petitioner that the cheque was not issued in discharge of the legally enforceable liability as chitty is not registered under the Chitties Act cannot be accepted. The evidence of PW1 and Ext.P7 ledger extract will go to show Crl.R.P.No.2132 of 2014 5 that on the date of issuance of the cheque, the amount mentioned in the cheque was due. Further he did not send any reply to Ext.P4 notice issued by the complainant also. He did not adduce any evidence to prove that the blank signed cheque given was misused. So under the circumstances the courts below were perfectly justified in coming to the conclusion that the revision petitioner had failed to prove his case and rightly convicted him for the offence under Section 138 of the Act and the concurrent findings of the court below do not call for any interference. 8. As regards the sentence is concerned, the court below has sentenced the revision petitioner to undergo imprisonment till the rising of court and also to pay the cheque amount of Rs.1,28,478/- as compensation to the complainant, in default to undergo simple imprisonment for three months. This was confirmed by the appellate court. Maximum leniency has been shown by the courts below in imposing the sentence as well which this Court do not find any reason to interfere. 9. When the case was about to be disposed of, the counsel for the revision petitioner prayed for five months time, which was opposed by the counsel for the second respondent. Crl.R.P.No.2132 of 2014 6 However, considering the amount involved, this Court feels that four months time can be granted to the revision petitioner to pay the amount. So time till 15.4.2015 is granted to the revision petitioner to pay the amount. Till then execution of the sentence is directed to be kept in abeyance. If the amount is directly paid and any evidence is produced before the concerned court and if it is being acknowledged by the complainant, then the court below can be directed to treat the same as substantial compliance of payment of compensation and record that fact in the respective fine register as provided in **Beena v. Balakrishnan Nair & another** (2010 (2) KHC 851) and **Sivankutty v. John Thomas & another** (2012 (4) KLT 21) and permit him to serve the substantive sentence of imprisonment till the rising of court. With the above directions and observations, this revision petition is dismissed. Office is directed to communicate this order to the concerned court at the earliest. Sd/- **K.RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.2132 of 2014 7