Kalyangadu Raveendran v. State of Kerala and M.C. Mohanan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : ## **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 **Crl.Rev.Pet.No. 551 of 2000** **-----------------------------** _( CRL. APPEAL.2/2000 of SESSIONS COURT, KASARAGOD CC.40/1998 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD )_ REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------- KALYANGADU RAVEENDRAN, AGED 37 YEARS, S/O. V.C. KUTTY, B.C. ROAD, VIDYANAGAR, P.O. VIDYANAGAR, KASARAGOD, NOW RESIDING AT SWEET PALACE BUILDING, MULLERI P.O. BY ADV. SRI.A.X. VARGHESE ADV. SMT.R. SUDHA ## RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT : ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.C. MOHANAN, PROPRIETOR, M/S. STAR ENGINEERING WORKS, KASARAGOD. R1 BY PUBLIC PROSECUTOR ADV.SMT. M.K. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ORDER ON CRL. M.P.NO. 3082 OF 2000 IN CRL. R.P.NO. 551 OF 2000** DISMISSED. 03.12.2008 SD/- THOMAS P. JOSEPH, JUDGE. /TRUE COPY. P.S. TO JUDGE. ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **CRL.R.P. No. 551 of 2000** = = = = = = = = = = = = = == = = = = = = = = = = = **Dated this the 3[rd] day of December, 2008** ## **O R D E R** -------------- First respondent and counsel are absent. There is no representation. Heard learned counsel for revision petitioner and Public Prosecutor. 2. Following points arise for consideration: - (i) Whether cheque was issued for discharge of legally enforceable debt/liability? - (ii) Whether complaint is time barred? And - (iii) Whether sentence is excessive. 3. Perused relevant records. ## **Point No.1:** 4. According to first respondent, revision petitioner was a representative of M/s.Star Engineering Works and as per practice, revision petitioner used to collect orders from customers for rolling shutters and iron grills and taking such orders, revision petitioner will issue cheque in favour of the first respondent for the amount covered by the order, he will take delivery of rolling shutters or iron grills as the case may be, sell it to the customers and on remitting the amount ## **CRL. R.P. No.551 of 2000** ## **-: 2 :-** to the first respondent, cheque will be returned. One such transaction culminated in the revision petitioner issuing cheque dated 19.8.1996 for Rs.15,933/-. According to the first respondent he presented the cheque for collection on 5.9.1996. It was returned for insufficiency of funds and within 15 days of dishonour being intimated to the first respondent, he issued notice dated 18.9.1996 to the revision petitioner on 19.9.996. That notice was returned unclaimed on 10.10.1996. Complaint was preferred in the trial court on 12.11.1996. Learned counsel for revision petitioner, relying on Section 142(b) of the Negotiable Instruments Act (for short, “the Act”) contends that complaint preferred on 12.11.1996 is beyond one month from the date of legal notice. I stated that though notice is dated 18.9.1996, it was sent to the revision petitioner only on 19.9.1996. As per Section 142 (b) of the Act, complaint is to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act and as per the said proviso, payee should have made demand of money by giving notice in writing to the drawer within the stipulated period. It is not disputed that notice sent on 19.91996 was within 15 days of the first respondent getting intimation about the dishonour. Contention raised by the counsel is that complaint should have been filed within one month from the date of ## **CRL. R.P. No.551 of 2000** ## **-: 3 :-** notice. In this case as per the averments in the complaint which is not disputed before me, notice which was returned unclaimed was delivered to the sender only on 10.10.1996. That is the day on which the first respondent got information about deemed service of notice on revision petitioner. From that day, revision petitioner has 15 days’ time for payment of the amount and only if amount is not paid within that time, cause of action for lodging the complaint would arise. Hence first respondent was entitled to file the complaint within one month calculated from the date on which 15 days’ time expired from 10.10.1996. Complaint filed on 12.11.1996 was within that time. Hence the contention that complaint is time barred, cannot be sustained. ## **Point No.2:** 5. So far as the case pleaded by the first respondent, he gave evidence as P.W.1. Exhibit P1 is the cheque. Dishonour of cheque for insufficiency of funds is proved by Exhibits, P2, P5, P6 and the evidence of P.W.2, Manager of the drawee Bank. Learned counsel for revision petitioner would contend that even going by the Act what the first respondent stated as P.W.1 is that the cheque in question was only a security and placed reliance on the decision in **Sreenivasan v. State of Kerala** (1999 (3) KLT 849). ## **CRL. R.P. No.551 of 2000** ## **-: 4 :-** 6. As per the case pleaded by the first respondent and stated by him as P.W.1, it is not as if revision petitioner was being entrusted with the goods to be delivered to the customers, instead, it was in effect, sale of goods to the revision petitioner who used to issue cheque for he price, the condition or understanding being that on revision petitioner securing the amount from the customers and remitting it to the first respondent, latter would return the cheque to the revision petitioner. In other words, if revision petitioner did not remit the amount to the first respondent, he was entitled to present and encash the same. Exhibit P1 is issued by the revision petitioner accordingly, according to the first respondent. Revision petitioner did not deny that he was working as a representative under first respondent and issued the cheque in favour of first respondent in the circumstances pleaded by the latter. Revision petitioner has no case and there is no evidence also, either that goods covered by the amount stated in Exhibit P1 were returned to the first respondent or that he remitted price of the goods to the first respondent. Therefore first respondent was entitled to present the cheque and encash the same. It is idle to contend that cheque was issued as security, in the facts and circumstances of the case. May be, till remittance is made, cheque can be taken as a security, but if remittance is not made or ## **CRL. R.P. No.551 of 2000** ## **-: 5 :-** goods are not redelivered to the first respondent, then it cannot be said that cheque continued to be a security. Viewed in that line, I am unable to accept the contention that revision petitioner issued the cheque as a security. Courts below have accepted the evidence let in by the first respondent and found that Exhibit P1 was issued for discharge of debt/liability. 7. It is then contended by counsel for revision petitioner that at any rate, legality of the recoverability of debt is not a matter of presumption and is not proved by the first respondent. Assuming that Section 139 of the Act does not extend to the legality of recoverability of the debt or other liability, there is the evidence of the first respondent regarding the transaction which satisfied the requirement that cheque was issued for a legally recoverable debt. On going through the evidence and considering the contentions raised by the revision petitioner, I do not find reason to interfere with the finding of fact. Conviction therefore cannot be assailed. ## **Point No.3:** 8. So far as sentence is concerned, amount covered by the cheque is Rs.15,933/-. Considering the nature of the offence and object of legislation, I am inclined to think that simple imprisonment till rising of the court will be sufficient in the ends of justice. At the ## **CRL. R.P. No.551 of 2000** ## **-: 6 :-** same time, first respondent who suffered loss has to be compensated. Revision petitioner therefore has to pay compensation of Rs.16,000/to the first respondent. Resultantly, revision petition is allowed in part in the following lines: - (i) Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. - (ii) Revision petitioner is directed to deposit in the trial court for payment to first respondent Rs.16,000/(Rupees Sixteen thousand only) as compensation within three months from this day failing which he shall undergo simple imprisonment for two months. - (iii) If any amount is deposited by the revision petitioner in the trial court such amount shall be adjusted in the compensation referred in clause (ii) above. - (iv) It will be sufficient compliance with the direction contained in clause (ii) above if revision petitioner paid the compensation to the first respondent through counsel in the trial court and first ## **CRL. R.P. No.551 of 2000** ## **-: 7 :-** respondent filed statement in the trial court through counsel within the said period of three months acknowledging receipt of the amount. (v) Revision petitioner shall surrender in the trial court on 11.3.2009 to receive the sentence. Bail bond shall stand cancelled. Criminal Miscellaneous Petition No.3082 of 2000 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv **THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.551 OF 2000 ===================** **O R D E R** **3RD DECEMBER, 2008**