Jameela O.K. v. Rameesh K.P and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 4TH DAY OF NOVEMBER 2014/13TH KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 1888 of 2014** ## **--------------------------------** ## **CRL.A.NO. 66/2014 OF ADDL. SESSIONS COURT - V. CC 328/2012 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE.** **....** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **JAMEELA O.K, W/O.BAVA, ALINGAL HOUSE, BLOCK ROAD, KONDOTTY P.O., MALAPPURAM, PIN-673638.** ## **BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY)** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **---------------------------------------------------------------------** **1. RAMEESH K.P, S/O.MOIDEEN KUTTY, 'AL ZAM', NEDUNGINI PARAMBA, POKKUNNU P.O., CALICUT, PIN-673013.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1888 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 4[th] day of November, 2014 ## O R D E R Accused in C.C.No.328/2012 on the file of the Judicial First Class Magistrate Court (Marad Cases), Kozhikode, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the first respondent against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 3. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 3,00,000/-₹ and in discharge of that liability, he had issued Ext.P1 cheque dated 09.08.2011 drawn on Federal Bank in favour of the complainant, which when presented was dishonoured for the reasons 'funds insufficient' vide Ext.P2 dishonour 2 Crl. R. P. No.1888 of 2014 memo dated 31.10.2011. The complainant issued Ext.P3 notice dated 29.11.2011 on the official address as well as the residential address of the revision petitioner, evidenced by Ext.P4 and P5 postal receipts dated 30.11.2011 and the same were received by the revision petitioner evidenced by Ext.P6 and P7 postal acknowledgements on 01.12.2011. The revision petitioner had not paid the amount, so she had committed the offence punishable under Section 138 of the Act (hereinafter called 'the Act'). Hence the complaint. 4. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P8 were marked on his side. After closure of the complainants evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the 3 Crl. R. P. No.1888 of 2014 complainant's evidence. She had further stated that, there was no transaction between herself and the complainant and her husband borrowed some amount and issued her blank signed cheque as security. Though the transaction between her husband and the complainant were over, the cheque was not returned and mis-using the cheque, the present complaint has been filed. But no evidence was adduced on her side on this aspect. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo imprisonment for two months and also to pay a compensation of 3,64,660/-, in default to under simple₹ imprisonment for two months under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.66/2014 before the Sessions Court, Kozhikode, which was made over to Additional Sessions Court-V, Kozhikode, for disposal and 4 Crl. R. P. No.1888 of 2014 the learned Additional Sessions Judge dismissed the appeal, confirming the order of conviction and sentence passed by the court below. Aggrieved by the same the present revision has been filed by the revision petitioner/ accused before the court below. 5. Considering the scope of enquiry and also the 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 leaned Public Prosecutor appearing for the 2[nd] respondent dispensing with notice to the first respondent. 6. The counsel for the revision petitioner submitted that, the case of the accused was that the cheque given to the husband to be given as security for the transaction between her husband and the complainant was mis-used and the present complaint was field has not been properly appreciated by the court below and she had rebutted the presumption and the execution of the cheque Crl. R. P. No.1888 of 2014 5 has not been proved. 7. The learned Public Prosecutor supported the concurrent findings of the court below on this aspect. 8. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 3,00,000/-₹ and in discharge of that liability, she had issued Ext.P1 cheque. 9. The case of the revision petitioner was that, there was no direct transaction between them and the transaction was between her husband and the complainant and her cheque was given as security which was mis-used. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of the case in the complaint. Further he produced Ext.P8 passbook to show that he is having sufficient fund in the account to pay the amount to the revision petitioner. The revision petitioner had not sent any reply to Ext.P3 notice and she did not adduce any evidence 6 Crl. R. P. No.1888 of 2014 to prove her case as well. In the absence of evidence adduced on the side of the revision petitioner to rebut the presumption, the courts below were perfectly justified in relying on the evidence of PW1 and the presumption available under Section 139 and 118 of the Act and also the principles laid down in the decision reported in **Rangappa v. Mohan [2010(2) KLT 682 (S.C.)]** , rightly come to the conclusion that, the accused had committed the offence under Section 138 of the Act and rightly convicted her for the offence and the concurrent findings of the court below on fact on this aspect do not call for any interference. 10. As regards the sentence is concerned, the court below had imposed substantive sentence of two months simple imprisonment and also to pay a compensation of 3,64,660/- relying on the decision of the₹ Hon’ble Supreme Court in **Vijayan v. Baby [2011(4) KLT 355 (S.C.)]** with default sentence of two months simple imprisonment under Section 357(3) of the Code of Criminal 7 Crl. R. P. No.1888 of 2014 Procedure. The Hon’ble Supreme Court, in the decision reported in **[2013(4) KLT 350 (S.C.)] Somanath Sarkar v. Utpal Basu Mallick** , has observed that, there is no provision for payment of compensation in a case under Section 138 of the Negotiable Instruments Act and appropriate fine can be imposed and out of the fine, compensation can be paid under Section 357(1)(b) of the Code. So the courts below were not justified in imposing compensation directly. But considering the fact that, double the cheque amount can be imposed as fine and the interest can be taken note of for the purpose of fixing the fine amount, the amount of 3,64,660/- fixed by the courts₹ below as the amount payable by the accused cannot be said to be excessive. Once this amount has imposed as fine and this can be directed to be paid as compensation to the complainant. Then there is no necessity to impose a substantive sentence of imprisonment arises, as the Supreme Court has held in several cases that, it is a case of 8 Crl. R. P. No.1888 of 2014 quasi civil nature but criminal colour has been given by incorporating the same in 'the Negotiable Instruments Act'. So under the circumstances, this court feels that, the sentence imposed by the courts below can be set aside and the same is modified as follows: The revision petitioner is sentenced to pay a fine of 3,65,000/-, in default to undergo simple imprisonment₹ for two months and if the amount is realised, the same be paid to the complainant as compensation under Section 357 (1)(b) of the Code. The counsel for the revision petitioner prayed six months time for payment of the amount. Considering the amount involved, this court feels that the same can be granted. So the revision petitioner is granted time till 04.05.2015 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 payment before the court below, then court below is directed to record 9 Crl. R. P. No.1888 of 2014 payment, if it is acknowledged by the complainant after appearing before that court in the respective registers as provided in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** . With the above modification of the sentence alone, the revision petition is allowed in part. Office is directed to communicate this order to the court below at the earliest. Office is directed to give certified copy of the order to the revision petitioner only on production of the certified copy of the order of the trial court which he ought to have produced along with the revision. Sd/- K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss