K.N. Anil Kumar s/o Narayanan v. Rajendran Nair and The State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940** **Crl.Rev.Pet.No. 1533 of 2013 CRL. APPEAL NO. 29 OF 2013 OF SESSIONS JUDGE, PATHANAMTHITTA. ST 2388/2008 of J.M.F.C.-I,PATHANAMTHITTA** **REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED** **K.N.ANIL KUMAR S/O. NARAYANAN, KANDATHINKAL HOUSE, ALAPRA P.O., MANIMALA, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.** **BY ADV.SRI.S.NIDHEESH** ## **RESPONDENT(S)/RESPONDENTS/RESPONDENT/COMPLAINANT AND STATE:** ## **1. RAJENDRAN NAIR** **BHAGYA LEXMI FINANCE, (LEKSHMI BHAVAN), THELLIYOOR P.O., THELLIYOOR VILLAGE-689544.** ## **2. THE STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA) R2 BY PUBLIC PROSECUTOR SRI.E.C. BINEESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## B. SUDHEENDRA KUMAR, J. ..................................................... Crl.R.P. No. 1533 of 2013 ..................................................... Dated this the 5[th] day of June, 2018 ## ORDER The revision petitioner was convicted and sentenced concurrently by the courts below under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act'). ## 2. Heard. 3. The allegation of the complainant is that the revision petitioner borrowed an amount of Rs.80,000/from the complainant and towards the discharge of the said liability, the revision petitioner issued Ext.P1 cheque -: 2 :- Crl.R.P. No. 1533 of 2013 in favour of the complainant. The revision petitioner had a contention that the cheque in question was not issued as contended by the complainant and that the said cheque was issued as a blank signed cheque as security at the time of receiving the chitty amount in a chitty conducted by the complainant. To prove the case of the revision petitioner, the revision petitioner himself got examined as DW1 and through him, Exts.D1 and D2 were marked. However, Ext.D2 is a chart of Bhagyalakshmi Finance. There is absolutely no material before the court to indicate that the complainant had any connection with Ext.D2. PW1 also did not accept that PW1 was conducting any Chitty. In the absence of any material to show that the cheque in question was issued as security in connection -: 3 :- Crl.R.P. No. 1533 of 2013 with the chitty conducted by the complainant, the contention of the revision petitioner in this regard cannot be accepted, particularly when there is convincing evidence of PW1 with regard to the execution of Ext.P1 cheque by the revision petitioner. 4. The learned counsel for the revision petitioner has submitted that the revision petitioner had already paid an amount of Rs. 10,000/- to the complainant as per Ext. D1 receipt, prior to the filing of the complaint and in the said circumstances, the complaint filed for the cheque amount of Rs. 80,000/- cannot be sustained. The learned counsel relied on the decision of this Court in Joseph Sartho v. Gopinathan Nair [2008 (4) KLT 509], to -: 4 :- Crl.R.P. No. 1533 of 2013 buttress his submission. 5. It is borne out from Ext. D1 coupled with Ext. X1 that the revision petitioner deposited an amount of Rs. 10,000/- in the account of the complainant on 7-6-2008. It is also borne out from the records that the cheque was dishonoured on 27-5-2008 and the notice was issued on 7-6-2008. Therefore, there can be no doubt that the amount was deposited as per Ext.D1 subsequent to the presentation of Ext. P1 cheque for encashment. 6. The offence under Section 138 of the N.I.Act is a deemed offence. It is clear from the proviso (c) to Section 138 of the N.I.Act that if the drawer of the cheque fails to -: 5 :- Crl.R.P. No. 1533 of 2013 make payment of the 'said amount ' of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice, the drawer of the cheque shall be deemed to have committed the offence under Section 138 of the N.I.Act. The 'said amount' referred to in proviso (c ) to Section 138 of the N.I.Act, would no doubt, mean the cheque amount. The demand must be also for payment of the said amount of money as per proviso (b) to Section 138 of the N.I.Act. Therefore, there can be no dispute that the 'said amount' referred to in Section 138 of the N.I.Act would mean the amount covered by the cheque. In this case, the notice was issued on 7-6-2008. However, on the date of notice itself, the revision -: 6 :- Crl.R.P. No. 1533 of 2013 petitioner deposited Rs. 10,000/- in the account of the complainant without even informing the complaint about it. Ext. P1 cheque is for Rs. 80,000/-. Therefore, there can be no doubt that the revision petitioner did not pay the amount covered by Ext. P1 cheque to avoid the penal liability. 7. In Joseph Sartho ( Supra), the Division Bench of this court considered a case wherein part of the cheque amount was paid to the complainant prior to the presentation of the cheque for encashment. In the said circumstances, the Division Bench held that presenting the cheque claiming the entire amount is plainly illegal and the same cannot be the spring board for an action ## -: 7 :- Crl.R.P. No. 1533 of 2013 against the accused under Section 138 of the N.I.Act. In this case, there is no contention that any amount was paid prior to the presentation of the cheque before the Bank. Therefore, as on the date of presentation of Ext. P1 cheque before the Bank, the amount covered by Ext. P1 was due to the complainant. Therefore, the decision in Joseph Sartho (supra) is not applicable to the facts of the case on hand. 8. The upshot of the above discussion is that if the entire amount covered by Ext. P1 cheque is paid within the statutory period after the receipt of demand notice, no prosecution under Section 138 of the N.I. Act is maintainable. On the other hand, if only a part of the -: 8 :- Crl.R.P. No. 1533 of 2013 amount covered by the cheque is paid within the statutory period, there can be no doubt that the offence under Section 138 of the N.I. Act will be attracted as there is failure to make the payment of the cheque amount. If any part payment is made subsequent to the presentation of the cheque, the said aspect can be considered as a factor to mitigate the sentence. 9. For the above said reasons, the contention of the revision petitioner in this regard does not hold good. Having gone through the relevant inputs, I am satisfied that the courts below correctly appreciated the oral and documentary evidence adduced by the parties and concurrently found that the revision petitioner executed -: 9 :- Crl.R.P. No. 1533 of 2013 Ext. P1 cheque as contemplated under Section 138 of the N.I. Act and committed the offence under Section 138 of the N.I. Act, rejecting the contentions of the revision petitioner. No material has been brought to the notice of this court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding of conviction by the courts below does not warrant any interference by this court. Ext. P1 cheque is for Rs. 80,000/-. The revision petitioner had already paid an amount of Rs. 10,000/- as per Ext. D1 receipt. Considering the facts and circumstances of the case, including the amount covered by Ext. P1 cheque and aslo the period elapsed since the issuance of -: 10 :- Crl.R.P. No. 1533 of 2013 the cheque and also the period elapsed since the issuance of the cheque, I am of the view that the sentence awarded by the courts below, can be modified and reduced to a fine of Rs. 85,000/- with a default clause for simple imprisonment for two months, to meet the ends of justice. It is ordered accordingly. If the fine is reaslised, the entire amount shall be given to the complainant as compensation under Section 357(1) (b) Cr.P.C. In the result, this revision petition stands allowed in part as above. If the revision petitioner had already deposited any amount before the trial court, pursuant to the direction of this court or the lower appellate court, the said amount will be treated as part payment of the fine. Crl.R.P. No. 1533 of 2013 -: 11 :- The revision petitioner is granted six months to pay the fine, as requested by the learned counsel for the revision petitioner. Sd/-B. SUDHEENDRA KUMAR, JUDGE. ani/ /true copy/ P.S. to Judge