Jaya Sasidharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939** ## **Crl.Rev.Pet.No. 1045 of 2016** **------------------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 102/2014 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT, MUVATTUPUZHA** **AGAINST THE JUDGMENT IN S.T.NO. 3246/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY** **------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **----------------------------------------------------------------------------** **JAYA SASIDHARAN, AGED 49 YEARS, AMBUJA NIVAS, ELOOR, UDYOGAMANDAL, KALAMASSERY, ERNAKULAM.** **BY ADVS. SRI.T.P.SANTHOSH KUMAR SMT.MEENU MOHANAN** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT :** **----------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. MANOR (J) TRADERS AND KURIES (INDIA) PVT LTD, COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 AND HAVING REGISTERED HEAD OFFICE AT MANOJ HOUSE, MATTAMMAL, THEVARA, KOCHI-13. REPRESENTED BY ITS MANAGING DIRECTOR, SOMASEKHARAN NAIR, S/O. GOPALAN NAIR, POURNAMI, KONTHURUTHI, ERNAKULAM- 682 013.** **R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY R2 BY ADVS. SRI.T.MADHU SRI.B.S.SURAJ KRISHNA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.1045 Of 2016 --------------------------------- Dated this the 28th day of March, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in S.T.No.3246/2010 on the file of the Judicial First Class Magistrate Court, Kolencherry. The trial court as per the impugned judgment rendered on 30.6.2012 had convicted the petitioner and sentenced to undergo simple imprisonment for 3 months and to pay a fine of Rs.1,20,000/- and in default thereof, the accused was sentenced to undergo simple imprisonment for a further period of one month and the fine amount recovered shall be paid to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C, etc. Aggrieved thereby the petitioner had preferred Crl.A.No.102/2014 before the Sessions Court, Muvattupuzha. The appellate court concerned (Court of Additional Sessions Judge, Muvattupuzha), as per the impugned judgment dated 20.5.2016 had upheld the conviction and modified the substantive sentence of simple imprisonment for 3 months by reducing the same to imprisonment till the rising of the court and confirmed the payment of fine, etc. The cheque amount in ::2:: Crl.R.P.No.1045 Of 2016 this case comes to Rs.1,18,150/-. It is aggrieved by the above said judgments of both the courts below, that the petitioner has preferred the instant Crl.R.P by taking recourse to the provisions contained in Sec.397 r/w Sec.401 of the Cr.P.C. 2. Heard Sri.T.P.Santhosh Kumar, learned counsel appearing for the revision petitioner-accused, Sri.T.Madhu, learned counsel appearing for R-2 and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 3. The gist of the prosecution case is that on account of a debt/liability owed by the accused to the complainant-chit company in a chit transaction, the accused had issued Ext.P-1 cheque dated 17.9.2009 for Rs.1,18,150/- from the account maintained by the accused, payable to the complainant company. That the cheque when presented for collection was dishonoured on the ground of insufficiency of funds. That thereupon the complainant had sent the statutory demand notice calling upon the accused to pay the amount covered by the cheque within 15 days' time limit. Despite sending registered notice in proper process, the same was returned unserved. Thereupon the complainant has preferred the complaint, which resulted in the instant trial. ::3:: Crl.R.P.No.1045 Of 2016 4. During the trial, the Managing Director of the chit company was examined as PW-1 and had marked Exts.P-1 to P-6 documents. The defence has not adduced any evidence in this case. 5. PW-1 had broadly deposed in tune with the affidavit. It was stated that PW-1 is the Managing Director of the chit company and further that the accused was a subscriber of 3 chitties with sala of Rs.1 lakh each conducted by the complainant company and the accused had offered to draw chitty on discount of 20% per ticket and the said offer of the accused was accepted and the prize amount coming to Rs.2,40,000/- (Rs.1,80,000 x 3 = Rs.2,40,000/-) was duly disbursed to the accused. That the accused was liable to pay sala mount of Rs.3 lakhs (Rs.1 lakh per ticket x 3 = Rs.3 lakhs) to the complainant and that initially the accused was making payment through an agent and later she defaulted repayment and the total amount paid by her comes to Rs.1,81,850/- and therefore the balance amount of Rs.1,18,150/-, was due to be paid by the accused to the complainant company. That when the complainant had repeatedly demanded the accused to make the payment, she had forwarded Ext.P-1 cheque dated 17.9.2009 for an amount of Rs1,18,150/- through an agent of the complainant-company and the cheque when presented was resulted in dishonour, etc. The ::4:: Crl.R.P.No.1045 Of 2016 main attempt of the defence while cross-examining PW-1 was to the effect that the cheque in question was given as security at the time of commencement of the chit transaction and that she had paid the entire amount due to the company and there was full discharge of her liability and the complainant had misused the said cheque by presenting the same for collection, etc. Except making these defence suggestions, both the courts below found that the accused has not established any clinching factual circumstances to merely vindicate the said defence suggestions and that moreover it was also noted that the accused has not even sent reply to the statutory notice. The trial court also opined that if the accused had fully discharged her liability, it was quite easy for her to bring proper documents to evidence such payment and that the accused had failed to adduce any such documentary evidence to prove her contention regarding the discharge of the liability, etc. Though the learned counsel for the petitioner would contend that the chit company has not produced the chit agreement and the statement of accounts, both the courts below found that, in respect of the cogent evidence deposed by PW-1, regarding the commencement of the chit transaction, total sala amount, total payment made and the balance amount due, there were no effective challenge raised by the accused ::5:: Crl.R.P.No.1045 Of 2016 and that the attempts of the defence only could be in the realm of suggestion. It is in the light of these submissions, both the courts below came to the conclusion that the evidence of PW-1 is probable and credible and that the complainant could prove not only the transaction but also regarding the execution and issuance of the cheque in question. In this connection it is to be noted that there is no serious dispute that the cheque in question has been issued from an account maintained by the accused and the signature in the cheque is that of the accused. The Apex Court in the judgment in the case T.Vasanthakumar v. Vijayakumari reported in (2015) 8 SCC 378 has held that where the cheque as well as the signatory thereon has been accepted by the accused, the presumption under Sec.139 would operate and then the burden shifts on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. In that case, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan and the loan was repaid but the complainant did not return the security cheque, etc., and that the very same cheque was used by the complainant to implicate the accused and that cheque was dishonoured because payment was stopped and not for any other reason. Yet, the Apex Court held that since the complainant ::6:: Crl.R.P.No.1045 Of 2016 could get the benefit of statutory presumption under Secs.138 & 118(a) of the N.I.Act, the statutory presumption thereunder would operate and since the accused had not discharged the burden cast on him, he is liable to be convicted for the offence under Sec.138 of the N.I.Act. In the instant case, the accused has not been able to discharge her burden even on the basis of preponderance of probability either from the existing prosecution evidentiary materials or by adducing independence defence evidence. Therefore, the above said views of the courts below cannot be said to be perverse or unreasonable. The petitioner has not been able to successfully establish before this Court that the impugned judgments suffer from any grave illegality or procedural impropriety. No relevant or crucial evidentiary materials are seen shut out by both the courts below. In this view of the matter, this Court is of the view that no grounds have have been made out in the revision so as to interfere with the findings of conviction. As regards the question of sentence, it is seen that the trial court has imposed substantive sentence of simple imprisonment for 3 months and to pay a fine of Rs.1,20,000/and in default thereof, the accused was sentenced to undergo simple imprisonment for a further period of one month and that the fine amount so remitted should be disbursed to the complainant as ::7:: Crl.R.P.No.1045 Of 2016 compensation under Sec.357(1)(b) of the Cr.P.C., etc. The appellate court has reduced the substantive sentence of 3 months to imprisonment till the rising of the court while confirming the direction to pay the fine amount with default clause, etc. Since the cheque amount is Rs.1,18,150/-, the fine amount imposed on the petitioner of Rs.1.2 lakhs cannot be said to be excessive. The impugned sentence till the rising of the court also cannot be said to be excessive or disproportionate and therefore, this Court is not inclined to interfere with the impugned modified sentence of the appellate court. 6. Faced with this situation, Sri.T.P.Santhosh Kumar, learned counsel appearing for the petitioner submits that in case this Court is so inclined to uphold the conviction and sentence in this case, then this Court may grant at least 8 months' time to pay the fine amount of Rs.1.2 lakhs. Sri.T.Madhu, learned counsel appearing for the complainant, submits that the 1st respondent-complainant has no objection in granting time up to 6 months. Accordingly the following orders and directions are issued: - (i) The impugned conviction and the modified sentence imposed on the petitioner for the offence under Sec.138 of the N.I.Act is confirmed. - (ii) However, the petitioner is given 6 months' time from 1.4.2017 to pay the fine amount of Rs.1.2 lakhs. The petitioner will be at ::8:: Crl.R.P.No.1045 Of 2016 liberty to pay the amount directly to the complainant company upon which the complainant shall issue receipt evidencing such payment so as to enable the accused to produce it before the trial court to satisfy the trial court about the payment. The amount so paid by the accused shall be treated as if the fine mount has been remitted and the same shall be disbursed to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C. - (iii) The petitioner will personally appear before the trial court at 11:00 a.m. on 7.10.2017 to receive the sentence of simple imprisonment till the rising of the court and to satisfy the trial court about payment of compensation amount of Rs.1.2 lakhs. - (iv) Needless to say, on default of the petitioner to pay the compensation amount, she will have to undergo simple imprisonment for a further period of one month. - (v) Until 7.10.2017, all further proceedings that may be taken against the petitioner in pursuance of execution of the impugned sentence will stand deferred. - (vi) On default of the petitioner either to appear on 7.10.2017 or to make payment of compensation as directed above, the trial court will be at liberty to proceed against the petitioner in accordance with law. With these observations and directions, the Crl.R.P. stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-