K.N. Krishnankutty v. State of Kerala (represented by Public Prosecutor) and Mathew Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939** ## **Crl.Rev.Pet.No. 1319 of 2017 () --------------------------------** ## **CRA 8/2016 OF ADDITIONAL SESSIONS COURT-11 (SPECIAL), KOTTAYAM** **ST 37/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PALA** **-------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------------------------------------** **K.N. KRISHNANKUTTY, KALLETTU HOUSE, KUDAMALOOR P.O, KUDAMALOOR KARA, KOTTAYAM TALUK.** ## **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **--------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. MATHEW JOSEPH., S/O JOSEPH, PUTHENPURACKAL HOUSE, BHARANAGANAM P.O, BHARANAGANAM VILLAGE-686578.** ## **R1 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.1319 Of 2017 --------------------------------- Dated this the 8th day of November, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in S.T.No.37/2014 on the file of the Judicial First Class Magistrate Court-II, Pala, instituted on the basis of a complaint filed by R-2 herein. Ext.P-1 dishonoured cheque dated 15.6.2012 is for Rs.2 lakhs. The trial court as per the impugned judgment rendered on 19.12.2015 had convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for a period of 6 months and to pay a compensation of Rs.2 lakhs under Sec.357(3) of the Cr.P.C and in default thereof to undergo simple imprisonment for a period of 3 months. Aggrieved thereby, the petitioner has preferred Crl.A.No.8/2016 before the Sessions Court, Kottayam. The appellate Sessions Court concerned (Court of Additional Sessions Judge-II, Kottayam), as per the impugned judgment dated 12.5.2017 had upheld the conviction and sentence and thereby dismissed the appeal. It is aggrieved by these verdicts, that the ::2:: Crl.R.P.No.1319 Of 2017 petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C. 2. Heard Sri.P.C.Haridas, learned counsel appearing for the revision petitioner and Sri.Jestin Mathew, learned Prosecutor appearing for R-1 State. In the nature of the order proposed to be passed in this petition, notice to R-2 stands dispensed with. 3. The gist of the case of the complainant is to the effect that the complainant and accused were known to each other and that the accused had requested the complainant to advance a personal loan amount of Rs.2 lakhs and accordingly the complainant had given an amount of Rs.2 lakhs to the accused as personal loan with the promise on the part of the accused that he would repay the amount within a week and that, later in discharge of the said liability the accused had issued Ext.P-1 cheque dated 15.6.2012 for Rs.2 lakhs drawn from his account and payable in favour of the complainant and the cheque when presented resulted in dishonour as per Exts.P-2 & P-3 and thereupon Ext.P-4 statutory demand notice was caused to be issued by the complainant under Sec.138 proviso (b) of the N.I. Act, whereby the accused was called upon to pay the amount covered by the cheque within 15 days of the receipt of the notice and that the said notice has ::3:: Crl.R.P.No.1319 Of 2017 been duly delivered to the accused as per Exts.P-5 & P-6, etc., and since the amount was not paid by the accused, the complainant, after adhering to the procedural formalities, has instituted the instant complaint, which led to the conduct of the trial in question. During the trial, the complainant himself was examined as PW-1 and marked Exts.P-1 to P-6 documents. The defence has not adduced any oral or documentary evidence. 4. PW-1 has deposed that he had advanced an amount of Rs.2 lakhs to the accused as personal loan on 8.6.2012 and that thereafter in discharge of the said liability the accused has issued Ext.P-1 cheque dated 15.6.2012 for Rs.2 lakhs, which when presented resulted in dishonour, etc. The main defence set up by the accused during the cross-examination of PW-1 was to the effect that there was no monetary transaction whatsoever as between the accused and complainant and that the accused had borrowed Rs.50,000/- from one Deepu, who is the neighbour of the accused, and as security to the said transaction, two blank signed cheques, including Ext.P-1, were given as security and despite repayment of the amount to the said Deepu, the said cheque has been misused by the complainant by presenting the same for institution of the present complaint, etc. It is also the case of ::4:: Crl.R.P.No.1319 Of 2017 the accused that one such cheque was misused by the complainant by filing similar complaint for offence under Sec.138 of the N.I. Act before the Magistrate Court at Gudallur and Ext.P-1 cheque has been used in the present complaint, etc. The said suggestion was stoutly denied by the defence. It appears that the accused has projected the defence version in the reply notice sent by him to the statutory demand notice. Though reply notice has been sent by the accused, no such document is referred to in the complaint. The accused has also not produced the said reply notice. 5. Except raising such defence suggestion, the courts below have found that no clinching evidence has been brought out in evidence to establish the veracity of the defence plea. In crossexamination, PW-1 has denied not only the alleged misuse of Ext.P-1 cheque but also has stated that he has never filed any complaint against the accused before the Magistrate Court at Gudallur by using other cheque, etc. The learned counsel appearing for the petitioner-accused would submit that there are documents to show that such a complaint was actually instituted by the complainant against the accused herein before the Gudallur court and the said version given by the complainant is false and that itself would show that PW-1 complainant ::5:: Crl.R.P.No.1319 Of 2017 is not a trustworthy witness and that his evidence is to be discarded as it is not believable and credible. But it is to be noted that no material whatsoever has been produced by the accused before the trial court to show as a matter of fact that another complaint was also filed by the complainant against the accused before the Magistrate Court at Gudallur by using another cheque. If as a matter of fact, the allegation of the accused regarding the institution of another complaint at Magistrate Court at Gudallur is true, then certainly nothing prevented the accused from getting certified copies of such necessary proceedings before the Magistrate Court at Gudalur so as to produce it before the present trial court. No efforts whatsoever in that regard has been resorted to by the accused. Therefore, it is only to be held that the defence plea made by the accused cannot be countenanced at this distance of time. Both the courts below have found that the evidence given by PW-1 is broadly believable and credible and the accused has not been able to establish the veracity of the defence plea. It is in the light of these findings of facts, that the courts below have held that the petitioner is liable to be convicted for the offence under Sec.138 of the N.I. Act. These findings of facts cannot be said to be perverse or unreasonable and therefore, this Court is of the view that this Court will ::6:: Crl.R.P.No.1319 Of 2017 not be justified to interfere in a matter like this by taking recourse to the revisional powers conferred on this Court. As regards the sentence, the trial court has imposed substantive sentence of simple imprisonment for 6 months and to pay a compensation (fine) of Rs.2 lakhs and the fine amount cannot be said to be excessive. Having regard to the facts and circumstances of this case, this Court is of the view that the substantive sentence of simple imprisonment for 6 months is excessive and disproportionate. Going by the legal principles laid down by the Apex Court in Kaushalya Devi v. Roopkishore , reported in AIR 2011 SC 2566, it was held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones and the gravity of such a complaint cannot be equated with an offence under IPC and instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice. The Apex Court in the case Damodar S.Prabhu v. Sayed Babalal, reported in AIR 2010 SC 1907 held that in case of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. Therefore, this Court is of the view that the petitioner need only sentenced to pay a fine of Rs.2 lakhs (which is the cheque amount) and in default thereof to undergo simple ::7:: Crl.R.P.No.1319 Of 2017 imprisonment for a period of 3 months as ordered by the courts below. The amount so realised shall be disbursed to the complainant as compensation in terms of Sec.357(1)(b) of the Cr.P.C. The petitioner is also at liberty to enter into out of court settlement with the respondentcomplainant. If the respondent-complainant is willing to accept the amount lower that Rs.2 lakhs as compensation in full and final settlement of all the disputes in relation to this case, then the petitioner is permitted to make any such payment of lower agreed amount provided, a memo or statement is filed by the counsel appearing for the complainant before the trial court that the complainant has agreed to receive such lower amount in full and final settlement of all the disputes in relation of this case. If such a memo is filed by the accused before the trial court, then payment of such lower amount should be treated by the trial court as one in full and final settlement of all liability and such payment would amount to sufficient payment of fine/compensation. The petitioner is given 6 months' time to make such payment directly to the complainant, after such out of court settlement talks, if agreed to by both the parties. Upon receipt of such payment, the complainant will issue necessary receipt to enable the accused to produce the same before the trial court to satisfy that court about such payment. Any such ::8:: Crl.R.P.No.1319 Of 2017 payment directly made by the accused will be treated as if those amounts are paid as fine and then disbursed to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C. The petitioner will personally appear before the trial court at 11:00 a.m. on 19.5.2018 to satisfy the said court about payment of the above said amount directly to the complainant in the manner indicated hereinabove. Until 19.5.2018, all further coercive steps taken against the petitioner in execution of the impugned sentence in this case will stand deferred. On default of the petitioner either to appear before the court below on 19.5.2018 or to make payment as abovesaid, then the trial court will be at liberty to proceed against the petitioner in accordance with law. Registry will forward a copies of this order to the trial court as well as R-2 (complainant). With these observations and directions, the Crl.R.P. stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- //True copy // P.A to Judge.