Haridas, Bhaskara Nivas, Kottampalli, Oachira Village v. M. Rajankunju and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 **Crl.Rev.Pet.No. 487 of 2001()** **-----------------------------** CRA.211/1997 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.1189/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- HARIDAS, BHASKARA NIVAS, KOTTAMPALLI, OACHIRA VILLAGE. BY ADV. SRI.K.HARILAL RESPONDENT(S): /RESPONDENTS/COMPLAINANT & STATE --------------- 1. M.RAJANKUNJU, VILAYIL, THEKKETHIL VEEDU, AYAKKADUMOOLA MURI, CHINGOLI VILLAGE. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.K.ARAVINDAKSHA MENON FOR R1 SRI.K.C.CHARLES FOR R1 SRI.IMTHIYAZ AHAMED FOR R1 SRI.PRAKASH P.GEORGE FOR R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.R.P.No.487 of 2001 -------------------------------------Dated this the 1[st] day of December, 2008.** ## **ORDER** Heard both sides. ## 2. Following points arise for consideration:- I. Whether revision petitioner issued the cheque in question for discharge of legally enforceable debt/liability? II. Whether sentence is excessive? ## 3. **Point No.I.** First respondent filed a private complaint against the revision petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act') alleging that on a promise to secure job abroad, revision petitioner received Rs.60,000/- from him on 16.6.1993, was unable to secure job as promised, nor did he repay the amount and on the first respondent demanding the amount, revision petitioner issued cheque for Rs.40,000/- on 10.4.1995, that cheque was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand, revision petitioner did not pay the amount. First respondent gave evidence as PW1 and testified to his case. He proved Exts.P1 to P7. Ext.P1 is the cheque dated 11.12.1995. Case pleaded by the revision petitioner when questioned under section 313 of the **Crl.R.P.No.487/2001** 2 Code of Criminal Procedure (for short, 'the Code') is that he was the agent of M/s. Creative International Travel at Thiruvananthapuram, Rasheed, a cousin of the first respondent was his neighbour and working abroad during the relevant time, on the request of Rasheed, revision petitioner happened to introduce him to M/s.Creative International Travel Ltd., first respondent was also sent abroad but on false allegation, Deputy Superintendent of Police, Kayamkulam took the revision petitioner into custody and forced him to give a cheque. Learned magistrate rejected the contention of the revision petitioner, found him guilty, convicted and sentenced him to undergo simple imprisonment for one month and payment of fine of Rs.50,000/-. Aggrieved, revision petitioner filed Crl.Appeal No.211 of 1997. But that appeal ended in dismissal. Counsel for revision petitioner contends that due execution of the cheque is not proved. It is also contended by the learned counsel that no payment beyond Rs.20,000/could have been made except by way of cheque and hence the version of the first respondent regarding payment of Rs.60,000/- in cash to the revision petitioner cannot be believed. The further contention is that at any rate, presumption under Section 139 of the Act is only as regards the discharge of the debt or liability and that presumption cannot be extended to the legality of the debt or liability which is essentially a matter to be proved by the first respondent. Learned counsel placed reliance on the decisions in **Sivaraman v. Vasu (2002 (3) ILR Ker. 50) and Krishna Janardhan Bhat v. Dattatraya G.Hegde [(2008)** **4SCC 54]** . Learned counsel contends that courts below have wrongly cast the burden of proof on the revision petitioner. Learned counsel for first respondent **Crl.R.P.No.487/2001** 3 supported the findings of the courts below. 4. First respondent gave evidence as PW1 and testified to the alleged transaction stated in the complaint. According to him, when the revision petitioner was unable to arrange job as promised or to return the sum of Rs.60,000/- revision petitioner issued Ext.P1 cheque for Rs.40,000/- offering to pay the rest of the amount in cash. According to the learned counsel, there is no such averment in the complaint and to that extent, there is contradiction in the evidence of the first respondent. On going through the complaint, what could be discerned is that according to the first respondent, revision petitioner issued cheque for Rs.40,000/- towards the discharge of the liability but, that did not mean that the cheque was issued in full and final settlement of the entire claim made by the first respondent. Averment in the complaint only meant that cheque was issued towards the amount due (Rs.60,000/-). According to PW1 (first respondent), revision petitioner gave cheque for Rs.40,000/- and offered to pay the balance amount in cash. I am unable to find any contradiction in the evidence sufficient to discard the evidence of the first respondent. 5. Nor am I able to understand that any payment made beyond Rs.20,000/- otherwise than by way of cheque could not be taken into consideration in the matter of offence punishable under Section 138 of the Act. May be, in the given facts of a case, that the alleged payment beyond Rs.20,000/- was not as per cheque would be a circumstance in considering the case pleaded by the drawee or the holder in due course. That depends on the facts and circumstances of the case on hand. **Crl.R.P.No.487/2001** 4 6. It is not very much in dispute and going by the statement of revision petitioner when questioned under Section 313 of the Code and the suggestion to PW1 in cross-examination, Ext.P1 is a cheque drawn on the account maintained by the revision petitioner and further that revision petitioner has signed in Ext.P1 as its drawer. Then the question is whether the contention of the first respondent that the cheque was issued for the discharge of the debt or liability is correct. On that, first respondent has given evidence as PW1. Per contra, revision petitioner contended that he happened to issue the cheque under threat from the Deputy Superintendent of Police, Kayamkulam, but no evidence or circumstance justifying a conclusion in that line was let in or attempted to be let in, by the revision petitioner. It is interesting to note that not even a suggestion in that line was made to the first respondent when he was in the box. Instead, what was suggested to the first respondent in crossexamination was that for the sum of Rs.10,000/- taken by the revision petitioner from the father (obviously of the first respondent), a signed blank cheque was given and that first respondent in collusion with the father preferred a false complaint against the revision petitioner. That suggestion does not go in tune with the case pleaded by the revision petitioner when questioned under Section 313 of the Code. I do not forget that it is not the responsibility of the revision petitioner to disprove the allegation regarding execution of the cheque but while considering evidence of first respondent regarding the transaction which culminated in Ext.P1, these circumstances are required to be considered. I stated that there is absolutely no evidence to show that the Deputy **Crl.R.P.No.487/2001** 5 Superintendent of Police, Kayamkulam is involved in the matter which culminated in Ext.P1. I have considered the evidence and find no reason to interfere with the concurrent finding entered by the courts below that revision petitioner executed the cheque for the discharge of the debt/liability in favour of the first respondent. On the question whether debt or liability is legally recoverable, there is evidence of first respondent as PW1 which the courts below accepted and which I find no reason to interfere. As such, conviction of the revision petitioner cannot be assailed. ## 7. **Point.No.II.** Counsel for revision petitioner submitted that sentence awarded is excessive and pleaded for leniency. 8. In awarding sentence, the nature of the offence as well as the object of legislation are required to be considered. Section 138 was introduced in the Act to give credibility for transactions by way of cheque. Considering that aspects and since it is not shown that revision petitioner is involved in any other similar offence, I am inclined to think that imprisonment till rising of the court and direction for payment of compensation of Rs.45,000/- are sufficient to meet the ends of justice. Sentence therefore, is modified accordingly. Resultantly, this revision petition is allowed in part and the sentence imposed on the revision petitioner is modified as under:- i. Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. **Crl.R.P.No.487/2001** 6 ii. Revision petitioner is directed to deposit in the trial court Rs.45,000/- (Rupees Fortyfive thousand only) for payment to the first respondent as compensation within three months from this day failing which, he shall undergo simple imprisonment for two months. iii. Amount if any deposited by the revision petitioner in the courts below shall be adjusted in the compensation fixed under clause (ii). iv. Revision petitioner shall surrender in the trial court on 7.3.2009 to receive the sentence. iv. Bail bond is cancelled. Crl.M.P.No.2255 of 2001 will stand dismissed. **THOMAS P.JOSEPH, JUDGE.** **cks** **Crl.R.P.No.487/2001** 7 **Thomas P.Joseph, J.** **Crl.R.P.No.487 of 2001** **ORDER** **1[st] December, 2008**