K. Ramachandran v. State of Kerala and C. Masilamani

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 Crl.Rev.Pet.No. 2187 of 2010() ------------------------------------------CRA.27/2008 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD STC.3753/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------------------------------------------------- K.RAMACHANDRAN, AGED 55 YEARS, S/O.KARUPPASWAMY PILLA, CHANDRODAYAM, PARA ROAD, KANJIKODE, PALAKKAD DITRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENT(S): COMPLAINANT: --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.MASILAMANI, S/O.CHAMI MOOTHAN MELAMURI, KOPPAM, PALAKKAD DISTRICT-678 014. ADV. SRI.BINOY VASUDEVAN FOR R2 SMT.P.G.BABITHA FOR R2 R1 BY PUBLIC PROSECUTOR MR. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2010, HE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. ------------------------Crl.R.P.No.2187 OF 2010 -------------------------------Dated this the 28[th] day of July, 2010.** ## **O R D E R** Challenging the concurrent findings of the trial court as well as the appellate court against the revision petitioner, who is an accused for the offence under Section 138 of the Negotiable Instruments Act, preferred this revision petition. 2. The case of the complainant is that the accused borrowed an amount of Rs.60,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 20.7.2005, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the same allegation, the complainant approached the Judicial First Class Magistrate Court, III Palakkad by filing a complaint upon which cognizance was taken under Section 138 of Negotiable Instruments Act and instituted S.T.No.3753 of 2005. During the trial of the above case, the complainant himself was examined as PW1 and **Crl.R.P.No.2187 OF 2010** 2 adduced evidence and besides the above oral evidence, he has also produced Ext.P1 to P6 documents. From the side of the defence DW1 was examined and also produced Ext.D1 and D2. On he basis of available materials and evidence on record, the trial court found that the accused issued Ext.P1 cheque towards the discharge of legally enforceable debt that due to the complainant from the accused. Thus the trial court found that, the complainant has established the case against the accused/revision petitioner and accordingly found that the accused/revision petitioner is guilty of the charge leveled against him and thus the trial court convicted the accused under Section 138 of the Negotiable Instruments Act and on such conviction he is sentenced to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.60,000/- to the complainant under Section 357(3) of Code of Criminal Procedure. No default sentence is fixed by the trial court. 3. Though an appeal was filed by the accused, by judgment dated 27.8.2009 in Criminal Appeal No.27 of 2008 the Court of Sessions, Palakkad, allowed the appeal only in part and thus while confirming the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act the sentence was modified 3 **Crl.R.P.No.2187 OF 2010** and accordingly while setting aside the sentence of imprisonment the revision petitioner is sentenced to pay a fine of Rs.70,000/and in default of payment of fine, revision petitioner is directed to undergo simple imprisonment for a period of one month. It is also directed that on realization of the fine amount the same shall be paid to the complainant as compensation under Section 357(1) of Criminal Procedure Code. The above judgments of the courts below and the conviction are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. The learned counsel appearing for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the case against the accused whereas the accused succeeded in establishing a probable case so as to rebut the presumptions which is otherwise available for the complainant. In order to substantiate the contention of the petitioner, learned counsel invited my attention to a discussion contained in the impugned judgment with respect to Exts.D1 and D2. The learned counsel submitted that Ext.D1, which is the postal card containing 4 **Crl.R.P.No.2187 OF 2010** the seal of the company of the complainant, would show that a postal card was issued during the year 2002 to the accused. The further contention of the counsel is that Ext.D2 document is sufficient to show that the complainant was conducting a money lending business during the year 2002 and thus according to the learned counsel, the cheque in question pertains to the transaction by which the accused obtained Rs.5,000/- as loan from the complainant during the year 2002 and thus, according to the counsel, Ext. P1 cheque is not the one issued by the accused connected with the transaction claimed by the complainant. I am unable to accept the above contention. PW1, the complainant, himself mounted to the box and deposed in favour of the allegation in the compliant and also he had produced Ext.P1 cheque from his possession which contained the signature of the accused. The accused did not dispute the signature in Ext.P1 cheque and also the execution of the same. The only contention of the accused is that Ext.P1 cheque was issued and executed by him connected with the transaction that took place during the year 2002 and it is the further case of the defence that the loan amount of Rs.5,000/- had already been repaid and thus the liability is already discharged. But no evidence is adduced by the **Crl.R.P.No.2187 OF 2010** 5 defence to substantiate the above contention. But when the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act admits the execution and issuance of the cheque, even though not as claimed by the complainant, it is for the accused to establish the transaction which he claimed and to convince the court that the cheque in question was issued connected with such a transaction. Ext.D1 or D2 documents are in no way helpful for the accused to discharge the above burden. The falsity of the defence case is further clear from the culpable negligence on his part in not taking any proper steps for getting back the cheque leaf after the discharge of the liability connected with the transaction which he claimed which taken place during the year 2002. The trial court as well as the lower appellate court, after an elaborate consideration of the materials and evidence on record, came into a conclusion regarding the liability of the accused and issuance of the cheque towards the discharge of such liability etc. No amount is made out to interfere with such concurrent finding and, therefore, I find no merit in the contention raised in this revision petition and accordingly the conviction recorded by the trial court is approved. 6. As this Court is not inclined to interfere with the 6 **Crl.R.P.No.2187 OF 2010** conviction recorded by the courts below, the learned counsel for the petitioner submitted that some breathing time may be granted to the revision petitioner to pay the fine amount. According to me, the above submission can be considered favourably considering the facts and circumstances involved in the case. In the present case, the cheque in question is dated 20.7.2005 and thus, an amount of Rs.60,000/- which belongs to the complainant is with the revision petitioner for the last five years. The Honourable Apex Court in the decision reported in **Damodar.S.Prabhu** v. **Sayed Babalal.H.** [JT 2010(4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Thus, considering the above facts and legal position, I am of the view that while granting some time to the revision petitioner to pay the fine amount, the amount fixed by the lower appellate court can be enhance slightly. In the result, this Criminal Revision Petition is disposed of confirming the conviction recorded by the courts below. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.75,000/- within three months from today and in case of default in paying the fine amount within the above time, the revision **Crl.R.P.No.2187 OF 2010** 7 petitioner is directed to undergo simple imprisonment for three months and on realisation of the fine amount, a sum of Rs.73,000/- shall be paid to the complainant under Section 357(1) (b) of the Cr.P.C. and the remaining amount shall be paid to the State Exchequer. Accordingly, the revision petitioner/accused is directed to appear before the trial court on **28.10.2010** to to deposit the fine. In case of any failure on the part of the revision petitioner in appearing before the trial court and making the deposit of fine on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. If any warrant is pending against the revision petitioner the execution of the same shall be deferred till 28.10.2010. ## **V.K.MOHANAN, JUDGE.** mns