Harikumar v. C. R. Asokan and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935** **Crl.Rev.Pet.No. 3535 of 2005 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA 250/2003 of ADL.D.C. & MACT, THODUPUZHA, DATED 31-10-2005** **AGAINST THE JUDGMENT IN CC 368/2001 of J.M.F.C.,ADIMALI, DATED 06-09-2003** **REVISION PETITIONER/APPELLANT/ACCUSED:-------------------------------------** **HARIKUMAR, S/O.SREEDHARAN, KAKKANATTU VEEDU, BAISONVALLY KARA BAISONVALLEY VILLAGE.** **BY ADVS.SRI.C.M.TOMY** **SRI.MATHEW SKARIA** **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:---------------------------------------------** **1. C.R.ASOKAN, S/O.RAMAKRISHNAN, CHAKKUMKUZHIYIL VEEDU, BAISONVALLY KARA BAISONVALLEY VILLAGE.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.LATHEESH SEBASTIAN R2 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = Crl.R.P.No.3535 of 2005 = = = = = = = = = = = = Dated this the 5[th] July, 2013 ## **O R D E R** The Revision Petitioner is the accused in CC.No.368/2001 on the files of the Court of Judicial First Class Magistrate, Adimaly as well as the appellant in Crl.Appeal No.250/2003 on the files of the Additional Sessions Judge, Thodupuzha. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act') on a complaint filed by the first respondent herein. After trial, the learned Magistrate found the Revision Petitioner guilty of the offence alleged against him and convicted thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.90,000/- and in default to undergo simple imprisonment for one month. Though he had preferred the above Appeal, the appellate **Crl.RP.No.3535/2005.** 2 court also confirmed the conviction and sentence without any interference. This Revision Petition is filed against the concurrent findings of conviction and sentence passed by the courts below. 2. It is the case of the complainant that the accused borrowed Rs.90,000/- from the complainant and he had issued a cheque dated 3.5.2001 for the said amount in favour of the complainant. When the cheque was presented for encashment it was dishonoured and returned due to want of funds in the account of the accused. Later, the complainant caused to issue a lawyer notice demanding the cheque amount and the accused accepted the notice. But the accused has neither sent a reply nor did he pay off the cheque amount. Thus, the accused has committed offence under Section 138 of the NI Act. 3. To prove the execution and issuance of the cheque the complainant had examined himself as Pw1 and Exts.P1 to P6 were marked. No oral evidence was adduced **Crl.RP.No.3535/2005.** 3 by the accused but produced and marked Ext.D1. After scrutinising the evidence of the complainant, the court below have concurrently arrived at a finding that the complainant has successfully discharged the initial burden of proving execution and issuance of the cheque. Whereas the accused miserably failed to rebut the presumption under Section 118(a) and 139 of the NI Act which stood in favour of the complainant, though the complainant had been subjected to cross examination at length into minute details. 4. In defence, the contention raised by the accused was that he had given signed blank cheques bearing No.1609 and 1610 to the complainant as security towards debt of Rs.10,000/- only due to the complainant and the complainant had misused the same and filed the complaint. In order to substantiate the said contention the only evidence adduced before the court is Ext.D1. From Ext.D1, it is revealed that a demand was made to the accused herein for Rs.80,000/- due under a cheque bearing No.1610. **Crl.RP.No.3535/2005.** 4 In view of Ext.D1 it was also contended that there was no possibility for a prudent man to advance a huge sum of Rs.90,000/- to a man when the latter had already defaulted Rs.80,000/- to him. But, in the instant case, no reply was seen sent to Ext.D1 by the accused. The accused has no case that the complainant had preferred a complaint under Section 138 of the NI Act consequent to the non payment of the amount as per Ext.D1 notice of demand. Per contra, the complainant had deposed that Rs.80,000/- for which demand was made as per Ext.D1 was already paid to him by the appellant. Therefore, in the absence of any connecting link between the present transaction and Ext.D1 pales to insignificance and no evidentiary value can be attributed so as to rebut the presumption which too in favour of the complainant. The Revision Petitioner could not point out any kind of illegality or impropriety warranting interference of this Court; so also could not point out any kind of perversity in the appreciation of the evidence also. In the **Crl.RP.No.3535/2005.** 5 absence of any kind of perversity in the appreciation of evidence, this Court is not inclined to re-appreciate the entire evidence once again under the revisional jurisdiction of this Court. 5. As regards the contention that Ext.P1 cheque was issued as a security when he borrowed Rs.10,000/- from the complainant. The court below in view of the decision of this Court in **General Auto Sales v. Vijayalakshmi** (2005(1) KLT 478) found that even if a blank cheque has been given towards liability or even as security, when liability is assessed and quantified, if cheque is filled up and presented to Bank, person who had drawn the cheque cannot avoid criminal liability under Section 138 of the NI Act. As regards the rejection of prayer to sent the cheque for the opinion of the handwriting expert, the court below rightly found that the transaction with the complainant for a lesser sum is admitted and Ext.P1 cheque was signed and issued to the complainant, there is no need to sent the cheque for **Crl.RP.No.3535/2005.** 6 examining the signature of the accused by the handwriting expert. So, the court below rightly rejected that prayer also. In the absence of any kind of illegality or impropriety in the findings, I confirm the conviction as such without any interference. 6. Coming to the sentence I find that the sentence imposed on the Revision Petitioner is a little hardship and disproportionate with the nature and gravity of the offence. The dishonour of the cheque is almost in the nature of a civil wrong having a criminal overtone and imposition of fine payable as compensation is sufficient to meet the ends of justice. The loss sustained by the dishonour of the cheque can be restored by way of compensation. Thus, the compensatory aspect of remedy should be given much priority over punitive aspect. In the above view of the matter, I am inclined to modify the sentence imposed by the court below. 7. In supersession of the sentence imposed by the 7 ## **Crl.RP.No.3535/2005.** court below the Revision Petition will stand modified as follows: - (i) The Revision Petitioner shall undergo simple imprisonment for one day till the rising of the court. - (ii) The Revision Petitioner shall pay a compensation of Rs.95,000/- (Rupees ninety five thousand only) to the complainant under Section 357(3) of the Cr.PC. - (iii) In default, the Revision Petitioner shall undergo simple imprisonment for one month. This Revision Petition is allowed in part. **K. HARILAL, (JUDGE)** **Kvs/-**