K. Sharafudeen v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Crl.Rev.Pet.No. 81 of 2008() ---------------------------CRA.68/2006 of SESSIONS COURT, KOLLAM CC.136/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ---------------------------------------------- K.SHARAFUDEEN, S/O. KASIMKUNJU MUSALIAR, KIZHAKKATHIL VEEDU, MYLAKKADU CHERRY, MYLAKKADU P.O., KOLLAM. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SARITHA DAVID CHUNKATH SRI.R.JAYACHANDRAN RESPONDENTS: RESPONDENTS/STATE & COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.HAKKIM, S/O. SHAHUL HAMEED, KUZHINTHADATHIL VEEDU, KALAVAYAL MURI, VELINALLOOR, KOTTARAKKARA TALUK. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## -----------------------------------Crl.R.P.No.81 of 2008 ## ------------------------------------Dated this the 15[th] day of January, 2008 ## O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. The petitioner now faces a sentence of S.I for a period of 3 months. There is a further direction to pay an amount of Rs.2 lakhs as compensation u/s 357(3) Cr.P.C and in default to undergo S.I for a period of one month. 2. The cheque is for an amount of Rs.2 lakhs. It bears the date 31.10.03. The complainant contended that the cheque was issued to him for the due discharge of a legally enforcible debt/liability. The cheque was dishonoured on the ground of insufficiency of funds. The complainant came to court after observing the statutory time table scrupulously. The accused denied the offence. Thereupon PW1 was examined and Exts.P1 to P5 were marked. The accused denied all circumstances which appeared in evidence against him. He examined DWS1 & 2 as witnesses on his side. He examined himself as DW2. The manager of the drawee bank was examined as DW1. Crl.R.P.No.81 of 2008 2 3. The accused took up a contention that he does not admit that the cheque bears his signature. According to him, there was no transaction between him and the complainant. He took up a plea that the cheque was stolen from his possession. He further took the stand that the notice of demand was not addressed to him properly. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I.Act. Accordingly they proceeded to pass the impugned concurrent judgments. 5. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner assails the impugned concurrent judgments on 3 grounds. 6. First of all it is contended that the cheque does not bear the signature of the petitioner. We have primarily the evidence of PW1 that the cheque was signed and handed over to him by the petitioner herein. The petitioner, of course, has denied Crl.R.P.No.81 of 2008 3 the said assertion when he tendered evidence as DW2. The manager of the bank who was examined as DW1 had also stated that there is some dissimilarity in the signatures. The courts below considered the evidence on this aspect in detail and came to the conclusion that there is nothing to assume that the signature appearing in the cheque is not that of the accused. The court first of all took note of the evidence of the complainant as PW1. They further took note of the improbable, artificial and the incredible version that the cheque was stolen from the possession of the complainant. No contemporaneous or subsequent conduct consistent with such theory of theft of the cheque leaf did ever take place on the part of the accused. The courts below further took note of the fact that the admitted signatures of the accused at various point of time do themselves show variation and in these circumstances the alleged variation spoken to by DW1 is not of any crucial consequence. One cannot lose sight of the crucial fact that the cheque is drawn on a cheque leaf admittedly issued to the petitioner by his bank to operate his account. I must alertly remind myself that I am at the third tier of criminal litigation and at this stage, unless the findings of fact are found to be grossly erroneous and are found to lead to miscarriage of Crl.R.P.No.81 of 2008 4 justice, no invocation of the revisional powers of superintendence and correction is warranted. Having considered all the relevant inputs, I am not persuaded to agree that the finding of the courts below that the cheque was issued to the complainant by the petitioner for the due discharge of any legally enforcible debt/liability does warrant interference at all. The challenge on the first ground therefore fails. 7. Secondly it is contended that the notice of demand was not issued in the correct address of the petitioner. The petitioner in his evidence as DW2 and by placing reliance on Exts.D1 to D8 had attempted to advance a contention that the notice of demand Ext.P4 was not issued in his correct address. The courts below chose to invoke the presumption of due performance of official duties under Section 114 of the Evidence Act. What perhaps clinched the issue in favour of the complainant and against the petitioner on this aspect is the admitted receipt of the notice in the same address issued to the petitioner by the trial court in this proceedings. I am, in these circumstances, satisfied that the said contention of the accused that the notice not being issued in the correct address cannot be of any avail to the petitioner. Crl.R.P.No.81 of 2008 5 8. It may not be inapposite in this context to take note of the fact that the contention regarding inaccuracy of the address in the notice of demand cannot at any rate deliver any advantage to the petitioner/accused he having not made the payment even now though the proceedings had commenced against him as early as in 2004. The decision in **Alavi Haji v. Muhammed** [2007 (3) KLT 77 (SC)] is authority for the proposition that a drawer, who claims that he did not receive the notice sent by post, can, within 15 days of the date of receipt of summons from the court in respect of the complaint under Section 138 of the Negotiable Instruments Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons. A person who does not pay within 15 days of receipt of the summons from the court, cannot obviously contend that there was no proper service of notice as required under Section 138 of the Negotiable Instruments Act. The following passage in para.17 of **Alavi Haji** (supra) is, to my mind, of crucial relevance in the facts and circumstances of this case. “It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no Crl.R.P.No.81 of 2008 6 stipulation of giving of a notice before filing a complaint. **Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under S.138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under S.138 of the Act, cannot obviously contend that there was no proper service of notice as required under S.138, by ignoring statutory presumption to the contrary under S.27 of the G.C.Act and S.114 of the Evidence Act.** In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in _Bhaskaran's_ case (supra), if the -giving of notice-in the context of Clause (b) of the proviso was the same as the -receipt of notice-a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of S.138 of the Act.” (emphasis supplied) Crl.R.P.No.81 of 2008 7 9. Thirdly and finally the learned counsel for the petitioner contends that the sentence imposed is excessive. I find merit in that contention. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in the decision in **Anilkumar v. Shammi** [2002(3) KLT 852]. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight two rounds of legal battle by now and to wait from 2003 for the redressal of his genuine grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 10. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent. 11. In the result: a) This Crl.R.P is allowed in part; b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I Act are upheld; Crl.R.P.No.81 of 2008 8 c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.2,25,000/(Rupees Two lakhs twenty five thousand only) as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of 3 months. If realised the entire amount shall be released to the complainant. 12. The petitioner shall have time till 29.02.08 to make the payment and avoid the default sentence. The impugned sentence shall not be executed till that date. On or before 01.03.08, the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the modified sentence hereby imposed. ## **(R.BASANT, JUDGE)** rtr/-