K.P. Pradeep Kumar v. C.K. Sasidharan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 23RD DAY OF OCTOBER 2017/1ST KARTHIKA, 1939** ## **Crl.Rev.Pet.No. 1097 of 2017 ()** ## **--------------------------------** ## **CRA 56/2017 OF 1ST ADDITIONAL SESSIONS COURT, KOZHIKODE** **CC 1225/2015 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT , (N I ACT CASES) KOZHIKODE** **------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------------------------------** ## **K.P.PRADEEP KUMAR,** **S/O SREEDHARAN NAIR, 'SARATHY' P.O. WEST HILL, KOZHIKODE- 673 005** **BY ADVS.SRI.S.K.KRISHNAKUMAR SRI.E.G.GORDEN** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **------------------------------------------------------------------** **1. C.K. SASIDHARAN, S/O LATE A.A. KRISHNAN, ANUGRAHA, EAST HILL ROAD, CHAKKORATHUKULAM, CALICUT- 673 006, REPRESENTED BY POWER OF ATTORNY HOLDER, K.C.KANARANKUTTY** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM** **R1 BY ADV. SRI.K.A.SALIL NARAYANAN R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.1097 Of 2017 --------------------------------- Dated this the 23rd day of October, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act in C.C.No.1225/2015 on the file of the Special Judicial First Class Magistrate Court (N.I.Act Cases), Kozhikode. The trial court as per the impugned judgment rendered on 28.1.2017 had convicted the petitioner for the above said offence and had sentenced to pay fine of Rs.7,60,000/- to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C and in default thereof the accused was sentenced to undergo simple imprisonment for a period of five months, etc. Aggrieved thereby the petitioner had preferred Crl.A.No.56/2017 before the Sessions Court, Kozhikode. The appellate court concerned (Court of Additional Sessions Judge-I, Kozhikode), as per the impugned judgment dated 29.5.2017 had upheld the conviction and sentence and thereby dismissed the appeal. It is aggrieved by the above said judgments of both the courts below regarding the impugned conviction as well as the sentence, that the ::2:: Crl.R.P.No.1097 Of 2017 petitioner has preferred the instant Crl.R.P taking recourse to the provisions conferred under Sec.397 r/w Sec.401 of the Cr.P.C. 2. This Revision Petition was admitted on 18.9.2017 and notice was ordered to be issued to R-1. Though R-1 has been duly served, there is no appearance for that party. 3. Heard Sri.S.K.Krishnakumar, learned counsel appearing for the revision petitioner-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 4. The brief of the case of the complaint is to the effect that the complainant is a pediatrician by profession, who was earlier a professor in Medical College Hospital, Kozhikode, and has been subsequently working as a pediatrician in a leading private hospital in Kozhikode and that the accused is running a chit company called M/s. Amrutha Gayathri Chit Funds Private Limited in Kozhikode and that he had made the complainant to believe that the accused is the sole owner and Managing Director of the said Chit Fund Company and due to close acquaintance with the accused for several years, the complainant was induced to subscribe a chit in the name of his wife Smt.Padmaja Sasidharan in a chitty conducted by the accused and paid total amount of Rs.7,92,000/- including the dividend and the chit was terminated in ::3:: Crl.R.P.No.1097 Of 2017 January, 2013, and that in discharge of the said liability the accused has issued Ext.P-1 cheque dated 30.4.2013 for Rs.3,80,000/- and Ext.P-3 cheque dated 30.4.2013 for Rs.3,80,000/-, thus totaling to Rs.7,60,000/- drawn from his account and payable in favour of the complainant and the said two cheques when presented resulted in dishonor as evident from Exts.P-2 & P-4 and that thereupon Ext.P-5 statutory demand notice was issued calling upon the accused to pay off the amount covered by the cheque within 15 days from the date of receipt of the notice and that the said registered notice has been duly served on the accused as per Ext.P-6 postal receipt and since the accused had not responded to the same and since the amount was not paid, the complainant after adhering to the procedural formalities has instituted the instant complaint which resulted in the conduct of the trial. The power of attorney holder of the company has been examined as PW-1 and marked Exts.P-1 to P-9 documents. The defence has not adduced any oral or documentary evidence. 5. PW-1 has stated that he is the Manager, who is managing the affairs of the complainant-company and that he has direct knowledge about the transaction in question, which relates to the chit with the accused and that the total amount payable by the chit ::4:: Crl.R.P.No.1097 Of 2017 subscriber is Rs.7,23,200/- excluding dividend and that an amount of Rs.7,23,200/- has been paid from the complainant’s bank account to the accused through 16 cheques issued by the complainant which has been encashed by the accused through the account No.6705241010028 maintained by the accused with the State Bank of Travancore, Puthiyara Branch. PW-1 has broadly stated about the chit transaction entered into between the complainant and the accused in his capacity as Managing Director of the above said chit company and about the payments of the subscription in the name of complainant’s wife as per Ext.P-8 bank records of State Bank of Travancore, Kozhikode-Mavoor Road Branch. That, it was also stated that it was in discharge of the said liability in the chit transaction that the accused had issued Exts.P-1 and P-3 cheques for Rs.3,80,000/- each, thus totaling to Rs.7,60,000/-. 6. PW-2 is the Manager of the State Bank of Travancore, Kozhikode-Mavoor Road Branch, who has deposed that as per Ext.P-8 certificate issued by the bank, 16 cheques have been received by the complainant in favour of the accused and the same was encashed in the above said bank account of the accused with State Bank of Travancore, Puthiyara Branch. Both the courts below have found that the testimony ::5:: Crl.R.P.No.1097 Of 2017 of PW-2 and PW-1 were unchallenged by the accused and that as per Ext.P-8, a total amount of Rs.7,23,200/- has been paid by the complainant to the accused through 16 different cheques and that the said payment has been proved by the evidence of PW-1 as well as through the evidence of PW-2 as supported by Ext.P-8 certificate issued by that bank. 7. The defence sought to be projected by the accused during cross-examination was to the effect that the wife of the complainant was liable to pay amount to the accused and that a case was filed against the wife of the complainant through the staff of the accused before the Judicial First Class Magistrate Court (Marad Cases), Kozhikode, and towards settlement of the case, the complainant herein had issued cheques. Further, the suggestion put forward by the defence in cross-examination that the accused had borrowed Rs.1 lakh from the wife of the complainant and paid Rs.6,000/- per month and the accused had issued 2 blank signed cheques to the complainant, etc. Both the courts below have found that the accused has no consistent defence in the matter and PW-1 has denied those suggestions and apart from raising such suggestions the accused has not let in any evidence to substantiate the defence suggestion. ::6:: Crl.R.P.No.1097 Of 2017 8. Sri.S.K.Krishnakumar, learned counsel appearing for the revision petitioner-accused, would submit that PW-1 happened to be the power of attorney holder of the complainant and that after chief examination, PW-1 had died and that thereafter the original complainant had made available himself for cross-examination and that original complainant has not tendered his evidence in chief examination and therefore there is no legally acceptable evidence on the part of the complainant to prove his case, etc. It is pointed out by the learned counsel appearing for the petitioner that after submission of the proof affidavit, the power of attorney holder of the complainant had died and that complainant had not cross-examined PW-1 even though he was given an opportunity. Later, the court has closed the evidence and that thereafter the complainant has filed an application for subjecting him for cross-examination and it was only then the said power of attorney had died and thereupon the original complainant had made himself available for cross-examination, which has been done and the evidence so taken by the original complainant without getting his evidence in chief examination is unacceptable, etc. Even going by the said contention raised by the petitioner, it can be seen that though the trial court by giving reasonable opportunity to the ::7:: Crl.R.P.No.1097 Of 2017 accused to subject PW-1 for cross-examination, after the submission of his proof affidavit, the accused for reasons best known to him has not chosen to cross-examine and it was only later he has filed application to re-open the evidence so as to subject him for cross-examination and it was then only he learnt that PW-1 was no more, etc. Even going by the said case of the petitioner-accused that it is clear that without any objections whatsoever the defence has cross-examined the original complainant and no objections were seen raised by the defence and that the said procedure is improper and that the original complainant should offer himself for chief examination, he could be subjected to cross-examination by the complainant, etc. That apart, it is clear from the materials on record that the complainant was was conducting his personal financial affairs through his Manager, who is PW-1 power of attorney holder, who had witnessed the entire transaction in question. True that PW-1 has also stated that the amounts in question were paid by the complainant to the accused through State Bank of Travancore, Puthiyara Branch Branch. Further, apart from the said oral evidence of PW-1 in his chief examination, the prosecution has also examined PW-2, who is the Manager of State Bank of Travancore, Kozhikode-Mavoor Road Branch, who has clearly ::8:: Crl.R.P.No.1097 Of 2017 deposed that the complainant has remitted a total amount of Rs.7,23,200/- through 16 different cheques and the said amount has been duly remitted to the bank account of the accused maintained at State Bank of India, Puthiyara Branch. Both the courts below have found that the said aspects relating to the source of funds have not been even remotely challenged by the accused. Therefore, apart from the evidence of PW-1, the testimony of PW-2 and Ext.P-8 will clearly prove the payment of money in the chit transaction by the complainant to the accused. That is in fact, the fulcrum of the case regarding the liability owed by the accused to the complainant. Therefore, non-examination of the original complainant in chief examination after the death of PW-1 has not caused any prejudice to the accused. As stated hereinabove, the accused has not volunteered to cross-examine PW-1, when he completed his chief examination. For reasons best known to the accused, he had not duly availed the opportunity to cross-examine PW-1, which led to the closing of evidence. Despite lack of diligence on the part of the accused, the trial court had re-opened the evidence and opportunity was granted by the trial court. Since the case relating to the liability has been proved on the basis of the evidence of PW-2 and Ext.P-8, the courts below cannot be found fault with for having found ::9:: Crl.R.P.No.1097 Of 2017 that the accused is liable to be convicted for the offence under Sec.138 of the N.I.Act. The only defence offered by the accused is that the wife of the complainant was liable to pay some amount to the accused and a case was filed against the wife of the complainant before the Judicial First Class Magistrate Court at Kozhikode, and towards settlement of the case, the complainant has issued the said cheques. The other defence put up by the accused was to the effect that the accused has borrowed Rs.1 lakh from the wife of the complainant and paid Rs.6,000/- per month and accused has issued 2 blank signed cheques which has been misused for instituting the present complaint. Both the courts below have held that the defence taken up by the accused are contradictory and more crucially, there are no clinching circumstance brought out in the evidence to even remotely establish the sustainability of such defence versions. It is in the light of all these cumulative circumstances that the courts below held that the accused is liable to be convicted. The abovesaid considered findings of facts cannot be considered as illegal or perverse. Hence this Court is not in a position to interfere with the said findings of conviction. As regards the sentence, it is seen that the trial court has liberally sentenced the petitioner by imposing only a fine of Rs.7,60,000/-, which is the total amount of the two cheques in question ::10:: Crl.R.P.No.1097 Of 2017 and on default of payment the said amount, the accused has been ordered to undergo simple imprisonment for a period of 5 months. The said fine amount so realised was ordered to be given to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C. These directions of the trial court has been fully affirmed by the appellate court as well. The Apex Court in the decision in R.Vijayan v. Baby & anr., reported in (2012) 1 SCC 260, has held that criminal court should award interest on the compensation amount @ 9% p.a. on the cheque amount from the date of cheque upto the date of actual realisation apart from the cheque amount. In the instant case the courts below have imposed only Rs.7,60,000/-, which is only the cheque amount and no interest has been so ordered by the trial court. Having regard to the facts and circumstances, this Court is of the view that the default sentence clause of simple imprisonment for 5 months could be reduced to simple imprisonment for 4 months. 9. While admitting this revision petition, the petitioner had undertaken on 18.9.2017 that he would deposit Rs.4 lakhs within one month's time. Now, the petitioner has filed Crl.M.A.No.5420/2017 in this revision petition seeking one month's time extension to deposit the said amount of Rs.4 lakhs. Accordingly, it is ordered that the petitioner ::11:: Crl.R.P.No.1097 Of 2017 shall deposit the amount of Rs.4 lakhs before the trial court within one month from 1.11.2017. The petitioner shall remit the balance amount of Rs.3,60,000/- within 3 months therefrom. Immediately on remitting those amounts, the trial court shall release those amounts forthwith to the complainant, after notice of intimation. Accordingly, the following orders and directions are issued: - (i) The impugned conviction and sentence of fine imposed on the petitioner for the offence under Sec.138 of the N.I.Act will stand confirmed. - (ii) The default sentence clause of simple imprisonment for 5 months is reduced to simple imprisonment for 4 months. - (iii) The petitioner is given one month's time from 1.11.2017 to remit Rs.4 lakhs before the trial court and further period of 3 months therefrom to remit the balance fine amount of Rs.3,60,000/-. The fine amount so realised shall be disbursed to the complainant under Sec.357(1)(b) of the Cr.P.C. On remitting the various instalments of the fine amount, the trial court will ensure that the said amount is released to the complainant forthwith after due notice of intimation to that party. - (iv) The accused shall personally appear on or before the trial court on 3.3.2018 to satisfy the said court about payment of total amount of Rs.7,60,000/-. On default of the petitioner to pay the said amount, the accused has to suffer simple imprisonment for 4 months. - (v) Until 3.3.2018, all further coercive steps taken against the petitioner in execution of the impugned sentence will stand deferred. ::12:: Crl.R.P.No.1097 Of 2017 - (vi) On default of the petitioner either to appear on 3.3.2018 or to make the payment as stated above, the trial court will be at liberty to proceed against the petitioner in accordance with law. Registry will forward a copy of this judgment to the trial court as well as R-1. With these observations and directions, the Crl.R.P stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // true copy // P.A to Judge.