K.G. UTHAMAN v. M/S SHRIRAM TRANSPORT FINANCE CO. LTD. & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936** **Crl.Rev.Pet.No. 1672 of 2014 ()** **--------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 185/2013 of ADDITIONAL SESSIONS COURT - IV, KOTTAYAM DATED 30-07-2014.** **AGAINST THE JUDGMENT IN ST 129/2012 of J.M.F.C. IV, KOTTAYAM DATED 18-05-2013** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **K.G.UTHAMAN, KUMMANATHUCHIRA HOUSE, VADAVATHOOR P.O., KOTTAYAM DISTRICT.** **BY ADVS.SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS** ## **RESPONDENTS/RESPONDENT AND STATE:** **----------------------------------** **1. M/S. SHRIRAM TRANSPORT FINANCE CO. LTD., REGISTERED OFFICE 123, A.N.STREET, CHENNAI-1, REPRESENTED BY ITS BRANCH MANAGER, K.P.AJI, AGED 29 YEARS, S/O. K.R.PORINJU, KUNNATH HOUSE, PATTIKKADU P.O., THRISSUR DISTRICT-680004.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTORS SRI. GITHESH.R.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1672 of 2014 -----------------------------------------------------Dated this the 26[th] day of September, 2014** ## **ORDER** The revision petitioner is the accused in S.T. No.129/2012 on the files of Judicial First Class Magistrate's Court-IV, Kottayam, as well as the appellant in Criminal Appeal No.185/2013 on the files of the Additional Sessions Court-IV, Kottayam. 2. The revision petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, on the complaint filed by the 1[st] respondent herein. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted him accordingly. He was sentenced to undergo simple imprisonment for a **Crl.R.P. No. 1672 of 2014** -: 2 :- period of three months and to pay a compensation of Rs.50,000/- under Section 357(3) of the Code of Criminal Procedure and in default, to undergo simple imprisonment for 30 days. Though, he had preferred the above appeal, after re-appreciation of the entire evidence on record, the appellate court also concurred with the findings of conviction; but reduced and modified the substantive sentence of imprisonment to simple imprisonment for one day till rising of the court and sustained the rest of the sentence as such. The legality and propriety of this judgment is under challenge in this revision petition. 3. It is the case of the 1[st] respondent/ complainant that the revision petitioner/accused had availed a loan for purchasing a car under hypothecation agreement from the 1[st] respondent and in discharge of the amount due to the 1[st] respondent in that transaction, Ext.P4 cheque dated 31/05/2008 for an amount of `50,000/-, drawn on an account maintained by him with the Karur Vysya Bank, **Crl.R.P. No. 1672 of 2014** -: 3 :- Kottayam Branch, was issued to the 1[st] respondent. When the cheque was presented for encashment, the same was dishonoured and returned due to lack of sufficient funds. Though, he has caused to issue a lawyer's notice, the revision petitioner neither sent a reply denying the liability; nor has he paid the cheque amount. Thus, he has committed the offence alleged against him. 4. The revision petitioner advanced arguments challenging the concurrent findings of conviction and sentence. The main thrust of the argument advanced by the learned counsel for the revision petitioner is that in the complaint, there is no averment as regards the original transaction. Secondly, it is contended that the attested copy of the Power-of-Attorney produced before the trial court as Ext.P1, is not admissible in evidence. To substantiate the first point, the learned counsel for the revision petitioner cited the decision in Narayanan v. State of Maharashtra [2013 (4) KLT 21 (SC)]. Going by the impugned judgment, it could be **Crl.R.P. No. 1672 of 2014** -: 4 :- seen that originally, the complaint was filed by P.W.2, who was the then Manager of the 1[st] respondent Company and not P.W.1, who was examined in evidence for and on behalf of the Company. But, it is to be noticed that P.W.2, who was acquainted directly with the transaction and filed the complaint, was examined as to give evidence relating to the original transaction. Thus, P.Ws.1 and 2 were examined to substantiate the entire transaction with the 1[st] respondent. Going by the above decision, it could be seen that the question that debated in the decision was, whether specific averment as to the knowledge of the Power-of-Attorney holder as to the impugned transaction must be specifically and explicitly asserted in the complaint. But, I am of the opinion that the said decision cannot be made applicable to the instant case, as, in the instant case, the original complaint was filed by the then Manager, who was acquainted with the transaction with the 1[st] respondent and not P.W.1, the Power-of-Attorney **Crl.R.P. No. 1672 of 2014** -: 5 :- holder. Coming to the second point, the argument advanced by the learned counsel for the revision petitioner is that the Power-of-Attorney was an attested copy only. Going by the impugned judgment, it could be seen that the petitioner has not challenged the competency or locus standi of P.W.1 as Power-of-Attorney holder. Moreover, Ext.P1 is the Power-of-Attorney attested by a Notary Public. I am of the opinion that since the copy was attested by a competent authority under law, as secondary evidence, when it was sufficiently explained that the original was produced before the Tribunal. Thus, I find that the argument advanced by the learned counsel for the revision petitioner is unsustainable under law and there is no illegality or impropriety in the findings relating to these aspects. 5. Going by the judgment passed in appeal, it is seen that the learned Sessions Judge, after reappreciating the entire evidence on record, observed that at the time of cross-examination of P.W.1, the **Crl.R.P. No. 1672 of 2014** -: 6 :- case set up by the accused was that he had not put the signature in the cheque; whereas at the time of cross-examination of P.W.2, his case was that Ext.P4 was given as a security and it was fabricated and misused by the complainant to file the present complaint. Further, the court below concurrently observed that though the revision petitioner had received the statutory notice issued by the 1[st] respondent, he did not sent a reply denying the transaction; nor did he pay off the cheque amount. As rightly held by the court below, it is a very strong circumstance which goes against the accused and the inference is that he is not disputing the demand made in the notice. Moreover, the accused has got a case that the complainant/1[st] respondent had fabricated and misused his cheque; but he did not take any legal action against the complainant before any authority. Therefore, I cannot find fault with the findings of the court below that inaction on the part of the accused notwithstanding his contention that the complainant **Crl.R.P. No. 1672 of 2014** -: 7 :- had fabricated and misused his cheque is inconsistent with the normal human conduct. As rightly held by the court below, it appears that there is no merit or bona fides in the contentions raised by the accused and that such contentions can be presumed to be raised only to wriggle out of the situation and to escape from the liability to pay the amount covered by the cheque. Hence, there is no illegality or impropriety in the impugned judgment. I do not find any kind of perversity in the appreciation of evidence also. 6. Further, the learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner is excessive and disproportionate with the gravity and nature of the offence. He urged for granting some more time to pay off the cheque amount by way of instalments. 7. 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 **Crl.R.P. No. 1672 of 2014** -: 8 :- N.I. 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 vs. 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. 8. In view of the above decisions, I am of the opinion that four months' time can be given to the revision petitioner to pay off the compensation amount. Consequently, the impugned judgment under challenge passed by the appellate court will stand modified accordingly. This revision petition is disposed of as under: i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. **Crl.R.P. No. 1672 of 2014** -: 9 :- ii. The Revision Petitioner shall pay a compensation of `50,000/- (Rupees fifty thousand only) to the 1[st] respondent/ complainant under Sec.357(3) of the Cr.P.C. within a period of four months from today. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 27/1/2015 with sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. The Criminal Revision Petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge