K. Mrithunjayan Nair v. G. Prabhakaran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 13TH DAY OF NOVEMBER 2014/22ND KARTHIKA, 1936** **Crl.Rev.Pet.No. 1951 of 2014 () --------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 35/2010 of II ADDL.SESSIONS JUDGE,TRIVANDRUM DATED 16.9.2014** **AGAINST THE ORDER/JUDGMENT IN ST 1332/2006 of J.M.F.C.-II, VARKALA DATED 23.12.2009** **REVISION PETITIONER(S)/ACCUSED:** **-------------------------------** **K.MRITHUNJAYAN NAIR, S/O.KESAVA PILLAI, M.L.SILK PALACE, KULATHOOR BUILDINGS, KALLAMBALAM THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.S.RAJASEKHARAN NAIR SRI.S.KRISHNA KUMAR (MANGALAM)** ## **RESPONDENT/RESPONDENT/COMPLAINANT/STATE:** **----------------------------------------** **1. G.PRABHAKARAN, VINOD BHAVAN, PALAYAMKUNNU DESOM, AYIROOR VILLAGE-695 012.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.1951of 2014 .................................................. Dated this the 13[th] day of November, 2014. ## **O R D E R** The accused in S.T.No.1332/2006 on the file of the Judicial First Class Magistrate Court-II, Varkala is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant/first respondent herein against the revision petitioner alleging commission of the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). 2. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.2,50,000/- and in discharge of that liability, he had issued Exts.P1 to P3 cheques for an amount of Rs.1,00,000/-, Rs.50,000/- and Rs.1,00,000/respectively and when the cheques presented for collection were dishonoured for the reason fund insufficient evidenced by Exts.P4 to P6 dishonour memos and that was intimated to the revision petitioner by his banker vide Ext.P7 intimation letter. The complainant issued Ext.P8 notice vide Ext.P9 postal receipt. The same was received by the revision petitioner on Crl.R.P.No.1951of 2014 2 12.6.2009 evidenced by Ext.P10 acknowledgment card. He had not paid the amount and so he had committed the offence punishable under Section 138 of the Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, complainant himself was examined as PW1 and Exts.P1 to P10 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he had denied all the incriminating circumstances brought against him in the complainant's evidence. The revision petitioner had further stated that there was no transaction between the complainant and the revision petitioner and in fact there was some money transaction between the complainant and the wife of the revision petition in the year 1998 and the blank signed cheques obtained at the time were misused and the presnet complaint was filed. No evidence was adduced on the side of the revision petitioner to prove his case. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder 3 Crl.R.P.No.1951of 2014 and sentenced him to undergo simple imprisonment for two months and also to pay cheque amount of Rs.2,50,000/- as compensation to the complainant, in default to undergo simple imprisonment for one month under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.35/2010 before the Sessions Court, Thiruvananthapuram, which was made over to Additional Sessions Court-II, Thiruvananthapuram for disposal and the Additional Sessions Judge allowed the appeal in part confirming the order of conviction and fine and direction to pay the amount as compensation with default sentence but reduced the substantive sentence to imprisonment till the rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Considering the scope of enquiry and the 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 and dispensing with notice to the first respondent. 5. The learned counsel for the revision petitioner submitted Crl.R.P.No.1951of 2014 4 that he had taken a specific contention that the revision petitioner had no capacity to raise the amount and though he had stated that he is having document, he has not produced the same before the court and he had relied on the decision reported in **John K. Abraham v.Simon C. Abraham** (2014 (1) KLT 90) in support of his case. In the absence of such evidence, the court below should have disbelieved the evidence of PW1 and should have accepted the case of the revision petitioner and acquitted him instead of convicting him. 6. The learned Public Prosecutor submitted that the concurrent findings of the courts below on this aspect do not call for any interference. 7. The case of the complainant in the complaint was that the revision petitioner had borrowed a sum of Rs.2,50,000/and in discharge of that liability, he had issued Exts.P1 to P3 cheques. The case of the revision petitioner was one of total denial. His case was that he borrowed a sum of Rs.2,00,000/from the wife of the complainant in the year 1998 and issued blank signed cheques in addition to the cheques of his son and also a blank signed stamped receipt. He paid interest at the rate of 35% till 2005. Though the amount was paid, Crl.R.P.No.1951of 2014 5 cheques were not returned. He demanded more interest and misusing the cheque, the present complaint was filed. So, once the execution and delivery of the cheque and transaction is denied, it is for the complainant to prove his case. It is true that in decisive reported in **John K. Abraham's case (cited supra)** , the Hon'ble Supreme Court has held that in order to draw the presumption under Sections 139 and 118 of the Code, the burden is heavy on the complainant to show that he required found for advancing the money to the accused and the issuance of the cheque in support of the said advancement was true and that the revision petitioner was bound to make the payment as he had agreed. Here the case of the revision petitioner was that there was money transaction between him and the complainant. He had borrowed an amount of Rs. 2 lakhs from the wife of the complainant in the year 1998 and three blank signed cheques were given and he was paying interest @ 36% till 2005 and misusing the cheques, the present complaint was filed. So, it cannot be said that there is no capacity for the complainant to pay the amount. If his wife can raise and pay Rs.2 lakhs as claimed by the revision petitioner, there is nothing to disbelieve the case of the Crl.R.P.No.1951of 2014 6 complainant that he had capacity to pay the amount as well. So the dictum laid down in the above case is not applicable to the facts of the case. Further the case of the revision petitioner was that the cheques were issued in the year 1998. But as rightly observed by the appellate court, the account number is having ten digits and such ten digits accounts were issued only later and not in 1998. So the case of the revision petitioner that the blank signed cheque given during 1998 was misused is also without any force. Further he did not send any reply to Ext.P8 notice issued by the complainant when the cheque was dishonoured. It can be presumed that since he has nothing to say about the transaction mentioned in the said notice, he did not send any reply. So in the absence of any convincing evidence adduced on the side of the revision petitioner to prove his case and the circumstances under which his cheques have reached the hands of the complainant, the courts below were perfectly justified in rejecting the contention of the revision petitioner and relying on the evidence of the complainant and also the statutory presumption under Sections 139 and 118 of the Code, rightly came to the conclusion that the cehques were issued by the revision petitioner in discharge of his liability Crl.R.P.No.1951of 2014 7 for the amount due from him and he had committed the offence punishable under Section 138 of the Act and rightly convicted him for the said offence and the concurrent findings of the court below on this aspect do not call for any interference. 8. As regards the sentence is concerned, the trial court has sentenced the revision petitioner to undergo simple imprisonment for two months and also to pay compensation of Rs.2,50,000/- to the complainant, in default to undergo simple imprisonment for one month. It is further directed that if fine amount is realized, the same be paid to the complainant as compensation under Section 357 (3) of the Code. The appellate court had though confirmed the conviction and sentence to pay compensation out of fine, but reduced the substantive sentence to till the rising of court which cannot be said to be excessive. Maximum leniency has been shown by the court below in awarding the sentence also. So, I do not find any reason to interfere with the sentence imposed by the court below as modified by the appellate court as it appears to be just and proper. 9. While the case was about to be disposed of, the Crl.R.P.No.1951of 2014 8 counsel for the for the revision petitioner prayed for six months time for payment of the amount. Considering the amount involved, this Court feels that the time sought for by the revison petitioner cannot be said to be excessive though the case is of the year 2006. So the revision petitioner is granted time till 13.5.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces of proof of such payment and that is being acknowledged by him, then the lower court is directed to treat the same as substantial compliance of the directions of the courts below as confirmed by this Court and record the same in the respective fine register as provided in **Beena v. Balakrishnan Nair & another** (2010 (2) KHC 851) and **Sivankutty v. John Thomas & another** (2012 (4) KLT 21). With the above observations, this revision petition is dismissed. Office is directed to communicate this order to the concerned court immediately. Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.1951of 2014 9