K.M. Jacob v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** **Crl.Rev.Pet.No.1141 OF 2018** **AGAINST THE JUDGMENT IN CRA 9/2017 DATED 11.07.2018 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, PATHANAMTHITTA** **AGAINST THE JUDGMENT IN ST 2327/2010 DATED 08.03.2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PATHANAMTHITTA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **K.M.JACOB AGED 49 YEARS S/O LATE MATHAI, KOORAYIL HOUSE VALAKOM P. O, KOTTARAKKARA, KOLLAM DISTRICT** **BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 T.M. SAMUEL, AGED 65 YEARS S/O. T.D. GEORGE, THANNICKAL VEEDU, OTHERA EAST, ERAVIPEROOR VILLAGE, PATHANAMTHITTA, PIN- 689541 R2 BY ADV. SRI.BIJU BALAKRISHNAN R2 BY ADV. SMT.V.S.RAKHEE R2 BY ADV. SHRI.SOORAJ S R2 BY ADV. SMT.SAYUJYA SRI.C.K.PRASAD P.P** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON 08.01.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1141/2018 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1141 of 2018 ------------------------------------------------Dated this the 8[th] day of January, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.2327/2010 on the file of the Court of the Judicial First Class Magistrate-II, Pathanamthitta. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of three months and directed him to pay an amount of Rs.5,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months. 3. The petitioner filed Criminal Appeal No.9/2017 before the Crl.R.P.No.1141/2018 3 Court of Session, Pathanamthitta challenging the conviction entered against and the sentence imposed on him by the trial court. The appellate court confirmed the conviction as well as sentence and dismissed the appeal. The concurrent verdicts of guilty, conviction and sentence made against the petitioner by the courts below are challenged in this revision petition. 4. Heard learned counsel for the revision petitioner and the also the second respondent/complainant. 5. The case of the complainant, as stated in the complaint, is that in discharge of a legally enforceable debt due to him, the accused issued a cheque dated 05.04.2010 for Rs.5,00,000/-. It is stated that when the cheque was presented in the bank, it was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount. 6. During the trial of the case, the complainant got himself Crl.R.P.No.1141/2018 4 examined as PW1 and Exhibits P1 to P6 were marked on his side. The accused got himself examined as DW1 and another witness was examined by him as DW2 and Exts.DI to D3 documents were marked on his side. 7. When examined as PW1, the complainant gave evidence in examination-in-chief that the accused had borrowed an amount of Rs.5,00,000/- from him on 09.03.2010 and that the accused signed and issued Ext.P1 cheque dated 15.04.2010 for that amount in discharge of that debt. 8. On cross-examination, PW1 deposed that there were four cases filed by him against the accused. He also stated that it was from the amount obtained by him by selling his 23 cents of property that he had advanced the loan to the accused. 9. The plea of the accused was that the complainant was an employee under him and that he had terminated the services of the complainant in his establishment and when the complainant left the office, he had stolen the signed blank cheque leaves which were kept by him in his office. Crl.R.P.No.1141/2018 5 10. The accused got himself examined as DW1. He stated that he had no financial transaction with the complainant. He stated that the complainant was the Manager of his office. He deposed that, on account of some problems created by the complainant in the office, he terminated the services of the complainant and when the complainant left his office, he had taken the signed blank cheques which he (accused) had kept in the office. 11. DW2 is an employee in the establishment of the accused. He gave evidence that the complainant was a staff in the same office. 12. On cross-examination, PW1 denied the suggestion that he was an employee of the accused and that he had stolen the cheque from the office of the accused. 13. The plea of the accused that, the cheque was stolen by the complainant from his office, cannot be accepted as probable. The testimony of the accused in that regard is not reliable. The reasons are the following. Crl.R.P.No.1141/2018 6 14. In the first place, there is no documentary evidence to show that the complainant was a staff of the office of the accused. Of course, the accused produced Ext.D1, which is a copy of the order issued by him appointing the complainant as the Manager of his office. Ext.D1 is a self-serving document. There is no material to show that Ext.D1 order was accepted by the complainant and he had worked in the office of the accused. DW1 gave evidence that it was the practice in his office to pay the salary of the staff in cash after getting vouchers signed by them. He also gave evidence that the vouchers showing payment of salary to the complainant were kept in his office. The accused did not produce those vouchers in the court. If he had produced in the court the salary vouchers signed by the complainant, it would have gone a long way in proving his case that the complainant was a staff of his office. Non-production of such vouchers in the court by the accused is a crucial circumstance to make an inference that his plea is not true. 15. In the second place, admittedly, the accused did not give any intimation to the bank regarding the loss or theft of the Crl.R.P.No.1141/2018 7 cheque. DW1 has very conveniently stated that it was after the dishonour of the cheque that he came to know about the theft of the cheque. But, when examined under Section 313 Cr.P.C, the accused has stated that on the date on which the complainant took away the cheque, he had given complaint to the police. If that be so, his evidence that he came to know about the loss of the cheque only after the dishonour of the cheque, cannot be believed. 16. In the third place, though DW1 would say that he had given complaint to the police regarding the theft of the cheque from his office, no document was produced during the trial of the case to prove so. No steps were taken by the accused to summon the complaint allegedly given by him to the police. 17. Of course, in the revision petition, along with an application as Crl.M.A.No.4/2019, he has produced a copy of the complaint allegedly given by him to the police regarding the theft of the cheque. This document cannot be accepted in evidence in the revision petition in the absence of sufficient reasons shown Crl.R.P.No.1141/2018 8 by the petitioner for not producing it before the trial court or atleast at the appellate stage. 18. Moreover, the copy of the complaint allegedly given by the petitioner to the police regarding the theft of the cheque and which is produced before this Court, is dated 14.06.2011. The complaint for the offence under Section 138 of the Act was filed in the trial court by the second respondent/complainant on 03.11.2010. Even if it is accepted that the accused had given a complaint dated 14.06.2011 to the police, it is evident that it is the result of deliberation and afterthought. ## 19. In **Uttam Ram v. Devinder Singh : JT 2019 (11) SC** **339** , the Apex Court has observed as follows: _“The respondent relies upon entry recorded with the police on 09.09.2011 that the cheque book was lost. However, the respondent has not lodged any FIR in respect of loss of cheque, even after the notice of dishonour of cheque was received by him on 27.10.2011. The mere entry is not proof of loss of cheque as is found by the learned Trial Court itself as it is self-serving report to create evidence to avoid payment of cheque amount”._ Crl.R.P.No.1141/2018 9 20. In the fourth place, the accused has not offered any satisfactory explanation as to under what circumstances signed blank cheques were kept by him in his office. There is no explanation forthcoming from the accused for such unusual conduct. 21. In the fifth place, absence of any response by the accused to the statutory notice sent to him by the complainant is yet another crucial circumstance. The accused has no case that he did not receive the lawyer notice sent by the complainant demanding an amount of Rs.5,00,000/- from him. He did not send any reply to the notice. If as a matter of fact, he did not owe Rs.5,00,000/- to the complainant and if he had not issued the cheque to the complainant in discharge of that liability and if the complainant had stolen the cheque from his office, the accused would have definitely sent a reply to the statutory notice. He would not have remained silent and inactive on receiving the notice from the complainant demanding such a huge amount from him. The fact that the notice of demand, Crl.R.P.No.1141/2018 10 though duly received and acknowledged by the accused, did not evoke any response from him is another crucial circumstance against him. The very fact that the accused had failed to reply to the statutory notice leads to the inference that there is merit in the complainant's version (See **Rangappa v. Mohan : AIR 2010 SC 1898** ). 22. Learned counsel for the petitioner contended that the complaint as well as the notice does not reveal the details of the transaction which the complainant had with the accused. Learned counsel would contend that absence of such details in the complaint is fatal to the case set up by the complainant. 23. Absence of details of the original transaction in the complaint or the notice will not affect the maintainability of the complaint or the validity of the notice. There is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability (See **M. M. T. C Limited v. Medchil Chemicals and Pharma (P) Limited : AIR 2002 SC** **182).** Crl.R.P.No.1141/2018 11 24. There is no invariable rule that absence of details regarding the original transaction in the complaint would make the evidence given by the complainant unreliable or the case set up by him improbable. Whether absence of such details in the complaint would affect the credibility of the testimony of the complainant or the case set up by him in evidence would depend upon the facts and circumstances of each case. If the accused has raised a probable plea regarding the possession of his cheque with the complainant and when the accused has adduced reliable evidence to prove his plea in that regard, then absence of details regarding the original transaction in the complaint may be a circumstance which enables the accused to rebut the presumption under Section 139 of the Act. In a case where the accused could not even raise a probable plea as to how his cheque, which bears his signature, happened to be in the possession of the complainant, and the evidence, if any, adduced by the accused in support of any plea raised, is not reliable and trustworthy, absence of details regarding the original transaction in the complaint will not affect the credibility of the evidence given by the complainant in that regard. ## 25. In **Shree Daneshwari Traders v. Sanjay Jain : AIR** Crl.R.P.No.1141/2018 12 ## **2019 SC 4003** , the Supreme Court has held as follows: _“The courts below disbelieved the evidence of the complainant on the ground that there are no averments in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit. Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. The courts below erred in brushing aside the - evidence of PW 1 on the ground that there were no averments in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part”._ (emphasis supplied). 26. In **Uttam Ram** (supra), the Supreme Court has held as follows: _“The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before civil court_ Crl.R.P.No.1141/2018 13 _wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability”._ (emphasis supplied) ## 27. In **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR** ## **2019 SC 1876** , the Supreme Court has observed as follows: _“The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the_ Crl.R.P.No.1141/2018 14 _onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been of irrelevant factors for consideration of a probable defence of the appellant. ....... The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the_ Crl.R.P.No.1141/2018 15 _presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt._ (emphasis supplied). 28. Therefore, once the initial burden of the complainant to prove the circumstances under which the accused issued the cheque in his favour is discharged and it is found that the plea of the accused is not probable and that he has failed to rebut the presumption under Section 139 of the Act, the inability of the complainant to prove the original transaction is of no consequence. 29. In the instant case, the accused did not even send a reply to the statutory notice. The evidence adduced by him regarding the theft of the cheque by the complainant is found to be totally unreliable and the plea raised by him in that regard has been found improbable. In such circumstances, absence of details regarding the original transaction in the complaint or the notice does not affect the credibility of the testimony of PW1. 30. Learned counsel for the petitioner would point out that Ext.P3 notice issued by the complainant to the petitioner is dated Crl.R.P.No.1141/2018 16 07.09.2010 and what is alleged in the notice is that the cheque was dishonoured on 23.09.2010. This mistake regarding the date of the notice sent by the complainant to the accused is of no consequence. PW1 has explained this mistake. Ext.P4 postal receipt would show that Ext.P3 notice was actually sent by the complainant to the accused on 07.10.2010 and not on 07.09.2010. 31. Learned counsel for the petitioner contended that Ext.P6 document which was admitted in evidence after recalling PW1 was not put to the accused during the examination under Section 313 Cr.P.C. It is true that, no question was put to the accused regarding Ext.P6 document during the examination under Section 313 Cr.P.C. Ext.P6 is the copy of the F.I.R registered against the accused on the basis of a complaint given by the complainant in the year 2014 alleging the offences punishable under Sections 506(i) I.P.C and 118(d) of the Kerala Police Act. Ext.P6 document has no relevancy in the case. It is not an incriminating evidence against him in the present case. In such circumstances, absence of any question put to the accused Crl.R.P.No.1141/2018 17 with regard to Ext.P6 during the examination under Section 313 Cr.P.C, has not caused any prejudice to the accused. 32. The courts below have properly analysed and appreciated the evidence in the case and reached the correct conclusion regarding the issuance of the cheque by the accused to the complainant and the inability of the accused to rebut the presumption under Section 139 of the Act. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings entered by the courts below. In such circumstances, conviction of the accused for the offence punishable under Section 138 of the Act is only to be confirmed. 33. Coming to the question of sentence, it is to be noted that the gravity of an offence under Section 138 of the Act cannot be equated with an offence under the Indian Penal Code or other criminal offences. An offence under Section 138 of the Act is almost in the nature of a civil wrong which has been given criminal overtones (See **Kaushalya Devi Massand v. Roopkishore : AIR 2011 SC 2566** ). Substantive sentence of imprisonment shall not be imposed in such cases except in Crl.R.P.No.1141/2018 18 exceptional circumstances. At the same time, direction to pay compensation to the complainant by way of restitution in regard to the loss on account of dishonour of the cheque shall be made. It would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. 34. In **Vijayan v. Baby** ( **AIR 2012 SC 528** ), the Apex Court has held as follows: _"The Courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate."_ 35. In the instant case, the cheque is dated 05.04.2010. More than nine years is now over. Interest at the rate of 9% on Crl.R.P.No.1141/2018 19 the cheque amount of Rs.5,00,000/-, for a period of nine years, would come to Rs.4,05,000/-. Then the total amount would come to Rs.9,05,000/-. However, taking a lenient view, I find that it is proper to set aside the substantive sentence of imprisonment imposed on the petitioner by the courts below and to impose a sentence of fine of Rs.7,50,000/- on him and award that amount as compensation to the complainant. 36. Consequently, the revision petition is allowed in part. Conviction of the petitioner/accused for the offence under Section 138 of the Act is confirmed. The sentence of simple imprisonment for a period of three months imposed on the petitioner/accused by the trial court, which stands confirmed by the appellate court, is set aside. The petitioner/accused is sentenced to pay a fine of Rs.7,50,000/- (Rupees seven lakhs and fifty thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of two months. If the fine amount is realised, it shall be given to the complainant as compensation. The petitioner is granted a period of six months Crl.R.P.No.1141/2018 20 from today to deposit the fine amount in the trial court. The amount, if any, already deposited by the petitioner in the trial court shall be adjusted towards the fine amount. **==> picture [39 x 13] intentionally omitted <==** **R.NARAYANA PISHARADI, JUDGE** jsr/04/01/2020 True Copy PS to Judge