K.K.Mary v. K. Mohanan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 Crl.Rev.Pet.No. 3212 of 2006() ------------------------------ CRA.5/2004 of SESSIONS COURT, KALPETTA CC.493/2001 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- K.K.MARY, W/O.K.P.RAMAN, KOPUDELAPARAMBATH VEEDU, AROOR, KAKATTIL, VADAKARA, KOZHIKODE. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: COMPLAINANT ------------------------ 1. K.MOHANAN, S/O.KUNHUKUNHU, DIYA HOUSE, CHEERAI P.O., SULTHAN BATHERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.N.J.ANTONY FOR R1 PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/06/2008, ALONG WITH CRRP NO. 1909 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.RAMKUMAR, J.** **................................................. Crl.R.P. No. 3212 of 2006 & Crl.R.P. No. 1909 of 2008 ................................................ Dated: 16-06-2008** ## **O R D E R** In these Revision Petitions filed under Section 397 read with Sec. 401 Cr.P.C. the common petitioner who was the accused in C.C. No. 493 of 2001 on the file of the J.F.C.M.I , Sulthan Bathery, for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and who was the complainant in C.C. No. 52 of 2005 on the file of the J.F.C.M.II, Sulthan Bathery respectively, for offences punishable under Sections 468 and 471 I.P.C., challenges the conviction entered and the sentence passed against him in C.C. No. 493 of 2001 and the dismissal of C.C. 52 of 2005 filed by him. 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revisions. The courts below have concurrently held that the cheque in question was drawn **Crl.R.P. No. 3212 of 2006 & Crl.R.P. No. 1909 of 2008** -:2:- by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the Act and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. 4. The learned counsel appearing for the revision petitioner made the following further submissions before me:- This is a case in which the accused in C.C. No. 493 of 2001 had lodged a complaint before the Sulthan Bathery police alleging forgery of the cheque by the complainant and alleging commission of offences punishable under Sections 468 and 471 I.P.C. Eventhough the police registered the case as Crime No. 297 of 2002 and charge-sheeted the complainant, the said case being a counter case to the present prosecution was not disposed of by the Magistrate along with the present case numbered as C.C. No. 493 of 2001. After the authoritative pronouncement by the Apex Court in the decisions reported in _**AIR 2001 S.C. 826 - Sudhir and Others v. State of Madhya Pradesh**_ and _**Nathi Lal v. State of U.P. - 1990 SCC 145,**_ the case and counter case which are also called cross cases **Crl.R.P. No. 3212 of 2006 &** **Crl.R.P. No. 1909 of 2008** -:3:- should be disposed of by the same court one after another and judgment pronounced in quick succession so that the whole case is before the very same court which has an opportunity to get a complete perspective of the rival contentions. The J.F.C.M. I, Sulthan Bathery who tried the present case as C.C. No. 493 of 2001 ought to have taken steps to see that C.C. No. 401 of 2002 subsequently reregistered as C.C. No. 52 of 2005 on the file of the J.F.C.M. II, Sulthan Bathery was also tried along with this case so that there was no failure of justice. The case of the revision petitioner was that on 18-9-1993 and on 30-09-1993, she had borrowed Rs. 15,000/- each totalling to Rs. 30,000/- from the complainant and had given a signed blank cheque by way of security and the said cheque was forged into the present one showing a sum of Rs. 95,000/- by the complainant . Her further case is that she had discharged the above loan of Rs. 30,000/- between 1993 and 1997. Exts. D1 to D5 letters issued by the complainant to the husband of the revision petitioner/accused will go to show that the transaction was really between her husband and the complainant and the amount borrowed was only Rs. 30,000/- and he was going on increasing the interest payable on the said amount of Rs. 30,000/-. It was on account of the close relationship between the parties that the revision petitioner did **Crl.R.P. No. 3212 of 2006 &** **Crl.R.P. No. 1909 of 2008** -:4:- not take the trouble of getting back the cheque after discharging the loan of Rs. 30,000/- borrowed by her. When the matter was pending in appeal before the lower appellate Court, she had filed a petition for sending the cheque to the handwriting expert opinion as to whether the writings other than the signature in the cheque were not forged or not. The said petition was rejected by the lower appellate court for no valid reason. 5. I am afraid that I cannot agree with the above submissions. Going by the case of the complainant, amounts were borrowed on 11-7-1999 and 22-8-99 and it was in discharge of the said liability that the accused issued Ext.P1 cheque for Rs. 95,000/-. As against this, the version of the accused was that it was her husband Raman examined as D.W.4 who was the borrower and the amount borrowed by him was only Rs. 30,000/- and it was at the time of the said borrowal that a signed blank cheuqe of the accused was handed over to the complainant by way of security. If the said transaction was closed by either the revision petitioner or her husband discharging the entire amount by 1997, an explanation was due from the revision petitioner as to why she allowed the cheque to be retained by the complainant for four years after which C.C. 493 of 2001 was filed by the complainant. Of course, the complainant is none **Crl.R.P. No. 3212 of 2006 &** **Crl.R.P. No. 1909 of 2008** -:5:- other than the husband of the sister of the revision petitioner. But then if the relationship was one of complete trust and confidence on account of the close relationship between the revision petitioner and the complainant , one would not have expected the complainant to insist on a cheque from the revision petitioner. Hence, the explanation that it was on account of the close relationship that she did not care to take back the cheque from the complainant after discharging the liability cannot be believed for a moment. 6. The complaint in this case was filed on 28-12-2001. The revision petitioner lodged a complaint before the Sulthan Bathery police only in the year 2002 alleging that Ext.P1 cheque was forged by the complainant and that the complainant thereby committed offences punishable under Sections 468 and 471 I.P.C. Eventhough the said case was registered as C.C. 401 of 2002, no attempt was made before the J.F.C.M. I, Sulthan Batheri to appraise the Magistrate about the pendency of C.C. 401 of 2002 before the J.F.C.M. II, Suolthan Bathery. On the contrary, the present case namely C.C. 493 of 2001 was allowed to be tried without any demur. The argument that the Magistrate should have taken steps to get C.C. No.401 of 2002 transferred from the file of the J.F.C.M.II to his Court for the purpose of consolidation and joint trial cannot be accepted. There is **Crl.R.P. No. 3212 of 2006 & Crl.R.P. No. 1909 of 2008** -:6:- no such duty cast on the Magistrate to call for the files from another court to enable the Magistrate to try the case along with a case already pending before him on the ground that one of the parties contends that both the cases are cross cases to be jointly tried and disposed of. Nothing prevented the revision petitioner from moving the superior courts for transfer of C.C. 401 of 2002 from the file of J.F.C.M. II to the file of J.F.C.M. I. If as a matter of fact, C.C. 401 of 2002 was liable to be tried along with C.C. 493 of 2001 and even after appraising the Magistrate about the pendency of the other case the Magistrate proceeded to try C.C. 493 of 2001 the petitioner should have either moved the Sessions Court or this Court for successive trial of the two cases and until then he should have applied for a stay of the trial of C.C. 493 of 2001. No such attempt was made. On the contrary, C.C. 493 of 2001 was tried without any objection from the revision petitioner. After he was convicted and sentenced by the trial court he had preferred an appeal before the Sessions Court as Crl. Appeal 5 of 2004 before the Sessions Judge, Wayanad . In that appeal also it was not contended that the trial court went wrong in not disposing of the alleged counter case namely C.C. 401 of 2002 along with C.C. 493 of 2001. It is for the first time before this Court that the petitioner has raised such a contention **Crl.R.P. No. 3212 of 2006 & Crl.R.P. No. 1909 of 2008** -:7:- which is only to be rejected and I do so. 7. The other contention that the petition filed by the revision petitioner before the lower appellate court for sending the cheque in question for expert opinion also does not deserve serious consideration. Ext.P1 is admittedly a cheque given by the revision petitioner to the complainant and it contains his signature also. Of course, according to her it was only a signed blank cheque offered as a security. If it was offered as a security to be made use of by the complainant upon the revision petitioner committing default in repaying the loan, then it is to be presumed that it contains an implied authority to the complainant to use the cheque as a negotiable instrument in the event of default by the accused. Except contending that she had discharged the liability with regard to an earlier loan taken from the complainant, no scrap of paper was produced in support of the plea of discharge. The revision petitioner would have been the best person to substantiate her contention that the loan which was availed of from the complainant was only Rs. 30,000/- and she had discharged the same. But, for reasons best known to her, she did not mount the witness box. Instead her husband alone was examined as D.W.4. Even on her own admission Ext.P1 cheque was given as a signed blank cheque undertaking the liability of her **Crl.R.P. No. 3212 of 2006 &** **Crl.R.P. No. 1909 of 2008** -:8:- husband who according to her was the person who borrowed the amount. If so, the prosecution of the revision petitioner under SEc. 138 of the N.I. Act was fully justified. 8. With regard to the alleged counter case initiated at the instance of the revision petitioner, it was numbered as C.C. 401 of 2002 and re-registered as C.C. 52 of 2005 on the file of the J.F.C.M. II, Sulthan Bathery. That court after trial, has acquitted the accused therein who is the complainant in C.C. 493 of 2001 under Sec. 248 (1) Cr.P.C. as per judgment dated 27-9-2007. The said acquittal is also after a careful evaluation of the oral and documentary evidence in the case. It is too late in the day for the revision petitioner to canvass the correctness of the said acquittal on the ground that C.C. No. 52 of 2005 ought to have been tried along with C.C. 493 of 2001 which was tried without any objection before the J.F.C.M. I, Sulthan Bathery. 9. C.C. 52 of 2005 was thus rightly dismissed by the Magistrate and no interference is called for. Crl.R.P. No. 1909 of 2008 is accordingly dismissed. 10. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the finding of guilt in C.C. 493 of 2001. The said finding has been recorded on an ## **Crl.R.P. No. 3212 of 2006 &** **Crl.R.P. No. 1909 of 2008** -:9:- appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner. 11. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in _**Ettappadan Ahammedkutty v. E.P. Abdullakoya**_ - _**2008 (1) KLT**_ _**851**_ default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of _**Rs. 95,000/- (Rupees ninety five thousand only)**_ The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within _**four months**_ from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period he shall suffer simple imprisonment for **Crl.R.P. No. 3212 of 2006 &** **Crl.R.P. No. 1909 of 2008** -:10:- three months by way of default sentence. In the result, Crl.R.P. 3212 of 2006 is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner and Crl.R.P. No. 1909 of 2008 is dismissed. Sd/- _**V. RAMKUMAR, JUDGE.**_ _**/true copy/**_ ani/-