HARIS I v. M/S SREE GOKULAM CHIT & FINANCE CO. (P) LTD., Palakkad & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936** **Crl.Rev.Pet.No. 1942 of 2014 ()** **----------------------------------------** **AGAINST THE JUDGMENT IN CRA 97/2013 of II ADDL. SESSIONS COURT, PALAKKAD, DATED 26-09-2014 & AGAINST THE JUDGMENT IN CC 22/2011 of J.M.F.C.-II, PALAKKAD, DATED 26-02-2013** ## **REVISION PETITIONER(S)/REVISION PETITIONER:** **-------------------------------------------------------------------------** **HARIS .I, AGED 38 YEARS, S/O.ISMAIL, MALIKAPARAMBU, ALATHUR, PALAKKAD.** ## **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------------------------------** **1. M/S.SREE GOKULAM CHIT & FINANCE CO.(P) LTD., DIVISIONAL OFFICE AT SANJOSE TOWER, OPP KSRTC BUS STAND, SHORNUR ROAD, PALAKKAD, REP. BY ITS LEGAL CLERK K. K. SUBASH KUMAR, AGED 29 YEARS, S/O.KRISHNAN, PULINELLI, KOTTAYI, PALAKKAD-678 572.** **2. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1942 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 12[th] day of November, 2014 ## O R D E R Accused in C.C.No.22/2011 on the file of Judicial First Class Magistrate Court-II, Palakkad, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent/complainant herein, against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, revision petitioner was a subscriber of the chitty conducted by the complainant concern and he bid the chitty and committed default in payment of the amount and there was an amount of 73,844/- due from₹ the revision petitioner and in discharge of the liability, he had issued Ext.P1 cheque dated 05.08.2010 in favour of the complainant. The cheque when presented was 2 Crl. R. P. No.1942 of 2014 dishonoured for the reasons ‘funds insufficient’, vide Ext.P2 dishonour memo dated 13.08.2010 and that was intimated to the complainant by their banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice, dated 04.09.2010 vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment on 06.09.2010. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, the 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 agent of the complainant authorised by Ext.P7 authorisation letter was examined as PW1 and Exts.P1 to P7 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal 3 Crl. R. P. No.1942 of 2014 Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had not issued the cheque as alleged by the complainant, but the blank signed cheque obtained was mis-used and the present complaint was filed. 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 and convicted him thereunder and sentenced him to undergo imprisonment, till rising of the court and also to pay 74,000/- as compensation to the₹ complainant, in default to undergo simple imprisonment for three months under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.97/2013 before the Sessions Court, Palakkad, which was made over to the 2[nd] Additional Sessions Court, Palakkad, for disposal and the learned Additional Sessions Judge by impugned judgment dismissed the appeal, confirming the order of conviction 4 Crl. R. P. No.1942 of 2014 and sentence passed by the court below. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Considering the scope of enquiry and nature of contentions raised, this court felt that, the revision can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the second respondent, dispensing with notice to the first respondent. 5. The counsel for the revision petitioner submitted that, the evidence of PW1 is not sufficient to prove the execution of the cheque and the case of the revision petitioner was that, the blank signed cheque obtained at the time when he bid the chitty was mis-used is more probable than the case of the complainant. So he had rebutted the presumption and the courts below were not justified in convicting the revision petitioner for the offence alleged. Crl. R. P. No.1942 of 2014 5 6. The learned Public Prosecutor supported the concurrent findings of the court below on facts and submitted that, no interference is called for. 7. The case of the complainant in the complaint was that, revision petitioner was a subscriber of the chitty conducted by the complainant concern and he bid the chitty and committed default in payment of the amount and there was an amount of 73,844/- due from₹ him in that account and in discharge of that liability, he had issued Ext.P1 cheque for the said amount in favour of the complainant company. The case of the revision petitioner was that, the blank signed cheque given as security at the time when he bid the chitty was mis-used and the present complaint was filed. In order to prove the case of the complaint, PW1 the authorised person as per Ext.P7 resolution was examined and he had categorically stated that, when the revision petitioner committed the default, it was intimated to the revision petitioner and he came to the office and after Crl. R. P. No.1942 of 2014 6 ascertaining the amount, Ext.P1 cheque was issued. He denied the suggestions that, blank signed cheque given was mis-used. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding the issuance of the cheque by the revision petitioner in discharge of the amount due to the complainant concern in the chitty transaction. Further he did not send any reply to the notice issued by the complainant, when the dishonour of the cheque was intimated to him as well. So in view of the dictum laid down in the decision reported in **Rangappa v. Mohan [2010(2) KLT 682 (S.C.)]** and **Gopakumar P. v. B. Anil Kumar and Another (2011(4) KLT (S.N.) 37)** , the courts below were perfectly justified in coming to the conclusion that, mere denial of the issuance of the cheque is not sufficient to rebut the presumption, especially when the signature in the cheque has been admitted and handing over the cheque to the complainant is also admitted by the accused. In the absence of convincing 7 Crl. R. P. No.1942 of 2014 evidence adduced on the side of the revision petitioner to prove his case, the courts below were perfectly justified in relying on the evidence of PW1 and the statutory presumptions available under Section 139 and 118 of the Act and rightly come to the conclusion that the revision petitioner had issued Ext.P1 cheque in discharge of his liability for the amount due from him to the complainant and in spite of notice issued, he had not paid the amount and he had committed the offence punishable under Section 138 of the Act and rightly convicted him for the said offence. So the concurrent findings of the courts below on facts do not call for any interference. 8. As regards the sentence is concerned, The courts below have sentenced the revision petitioner to undergo simple imprisonment, till rising of the court and directed to pay ₹74,000/-, as compensation to the complainant, in default to undergo simple imprisonment for three months under Section 357(3) of the Code. Maximum leniency has been shown by the courts below in Crl. R. P. No.1942 of 2014 8 imposing the sentence as well. So this court do not find any reason to interfere the sentence imposed, as it cannot be said to be excessive or harsh. 9. While this court was about to dispose of the case, the counsel for the revision petitioner prayed for six months time for payment of the amount. Considering the fact that, the case was of the year 2007 and also considering the amount involved, this court feels that, four months time can be granted to the revision petitioner to pay the amount. So the revision petitioner is granted time till 12.03.2015 to pay the amount. Till then the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount, directly to the complainant and produces the proof of receipt of the same before the concerned court and the complainant appear before the court and acknowledges the receipt of the same, then court below is directed to treat the same as substantial compliance of payment of compensation and record the same in the respective 9 Crl. R. P. No.1942 of 2014 registers as provided in the decision reported in **(2010 (2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** and permit the revision petitioner to serve substantive sentence of imprisonment, till rising of the court and close the case as provided in the above decisions. With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss