Jenifer v. Ambrose Das & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** ## **Crl.Rev.Pet.No. 1973 of 2003 ( )** **--------------------------------------------** **AGAINST THE JUDGMENT IN CRA 285/1998 of ADDL.SESSIONS COURT, FAS6T TRAK (ADHOC)II, THIRUVANANTHAPURAM AGAINST THE JUDGMENT IN CC 693/1996 of JUDCIAL FIRST CLASS MAGISTRATE COURT-II, NEYYATTINKARA** **-------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------------------------------------** **JENIFER, J.K. BHAVAN, MUKKONATHU VILA, KARIMON KULAM, VATTIYOOR KAVU P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.L.MOHANAN SMT.LIGEY ANTONY** ## **COMPLAINANT(S)/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------------------------------------------------** **1. AMBROSE DAS, RAJ BHAVAN, ALAMBARA, PARASUVAIKKAL VILLAGE, NEYYATTINKARA.** ## **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR.** **R2 BY PUBLIC PROSECUTOR SRI.V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **K.HARILAL, J. --------------------------------------------Crl.R.P. No.1973 of 2003 ---------------------------------------------** Dated this the 18[th] day of July, 2013 ## **O R D E R** The Revision petitioner is the accused in C.C.No.693/96 on the files of the Judicial First Class Magistrate Court, Neyyattinkara. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). After trial, the learned Magistrate found the Revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.40,000/-. In default of payment of fine, he shall undergo simple imprisonment for another two months. If the fine amount is realised, Rs.20,000/- will be given to the complainant. Aggrieved by the conviction and the sentence though the Revision petitioner had preferred Crl.Appeal No.285/98 before the Additional Sessions Court, Thiruvananthapuram, the learned Sessions Judge confirmed the conviction and the sentence and dismissed _Crl.R.P.1973/2003_ **:2:** the appeal. This Revision Petition is filed challenging the conviction and sentence, on various grounds. 2. The case of the complainant is that the accused borrowed an amount of Rs.20,000/- from the complainant and in discharge of that debt issued a cheque for Rs.20,000/- dated 6.6.1996 in favour of the complainant. When the cheque was presented for collection, the same was dishonoured and returned for want of sufficient funds. Though the complainant has caused to issue a lawyer notice demanding the cheque amount, and the postal authorities gave intimation about the notice to the accused, he did not accept the same. Thus the accused committed offence punishable under Section 138 of the Act. 3. To prove the execution and issuance of the cheque, the complainant was examined as PW1 and Exts.P1 to P7 were marked. No evidence, either oral or documentary, was adduced by the accused. In defence, while PW1 was cross-examined, the accused made a suggestion that Ext.P1 is a cheque, which had been given _Crl.R.P.1973/2003_ **:3:** to one Robinson and, that, it was later on fraudulently obtained by the complainant and misused for prosecuting the accused. But the complainant denied the said suggestion. 4. In 313, he denied the evidence tendered by the complainant. According to him, while he was working in Muscat, he had issued an NRE cheque for Rs.20,000/- to Robinson and he never issued a cheque to the complainant. Firstly, it was contended that Ext.P1 cheque is one issued from his NRE account. Since the Revision petitioner had returned from Muscat in the year 1993 the account was not in existence and he could not credit Indian money in the said account to honour Ext.P1 cheque. But, to substantiate the said contention, no evidence had been adduced to show that the cheque was an NRE cheque. So also, there is no proof to show that the accused has ceased to be an NRE. Only the accused himself can prove this aspect as rightly found by the court below. As no evidence was adduced by the accused regarding his immigration status, the court _Crl.R.P.1973/2003_ **:4:** below rightly rejected that contention. 5. The second contention raised by the Revision petitioner is that Ext.P1 cheque was issued to Robinson while he and Robinson were working in Muscat. No evidence was adduced by the accused in this regard. But PW1 had deposed that he had gone to the house of the accused at Vattiyoorkavu and the cheque was issued while both were at his residence and the said evidence. 6. The third contention was that the name of the complainant was written in a different way as 'A.Dass' instead of 'Ambrose Dass'. But the Bank to which the complainant had presented the cheque for collection had not refused to accept the same on the ground that the name differs. Therefore, there is no merit in that contention also. 7. The next contention of the Revision petitioner was about the issuance of Ext.P5 notice. According to the Revision petitioner, Ext.P5 notice was issued after expiry of statutory period of 15 days. The court below examined _Crl.R.P.1973/2003_ **:5:** Ext.P3 memo and Ext.P5 notice and found that notice was not at all belated and it was issued well within the time. There is no reason to disbelieve the verification of the court below also. 8. The Revision petitioner disputed the service of Ext.P5 notice also. He contended that the postal authorities have not given any intimation about its arrival. So also, the address of the accused written in Ext.P5 notice is not correct. But, the court below found that the address of the accused written in Ext.P5 notice is the same as that of the address mentioned in the appeal memorandum. The postal endorsement on Ext.P5 shows that an intimation about Ext.P5 was given to the addressee on 2.7.1996 and the accused failed to receive the same. Therefore, as rightly found by the court below, the only inference possible is that the accused willfully received Ext.P5 postal article. Thus, the court below considered all the contentions raised by the Revision Petitioner and rejected concurrently. _Crl.R.P.1973/2003_ **:6:** 9. I do not find any kind of illegality, impropriety or perversity in the findings or in the appreciation of evidence from which those findings have been arrived. On the analysis of the evidence, the trial court found that the complainant has successfully proved his initial burden of execution and issuance of the cheque. Whereas, the accused miserably failed to rebut the presumption which stood in favour of the complainant under Section 118(a) and 139 of the NI Act. I am of the opinion that the said finding is absolutely correct and in the absence of any kind of illegality or perversity, there is no circumstance warranting interference in revisional jurisdiction. Hence, I confirm the conviction entered by the court below concurrently. Coming to the sentence, I find that the sentence imposed on the Revision Petitioner is disproportionate with the nature and gravity of the offence. 10. The Supreme Court, in the decision in **Kaushalya Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held that the offence under Section 138 of the N.I. _Crl.R.P.1973/2003_ **:7:** Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in **Vijayan v. Baby** (2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 11. In view of the above decisions, I am inclined to reduce and modify the sentence imposed on the Revision Petitioner. In supersession of the sentence imposed by the trial court and confirmed by the appellate court, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay a fine of Rs.25,000/- (Rupees Twenty five thousand only). In default, the Revision Petitioner shall undergo simple imprisonment for two months. If the fine amount is _Crl.R.P.1973/2003_ **:8:** realised, the same shall be given to the complainant/first respondent as compensation. This Revision Petition is allowed in part. Sd/- **(K.HARILAL, JUDGE)** okb/Kvs