K.P. Prem Sundar v. P.P. Darar and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932** **Crl.Rev.Pet.No. 1785 of 2010()** **-----------------------------CRA.403/2003 of SESSIONS COURT, THALASSERY CC.245/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA** **....................** **REVN. PETITIONER(S)/APPELLANT/ACCUSED :-** **------------------------------------------------------------------** **K.P.PREM SUNDAR S/O.BALAKRISHNAN, AGED 43 YEARS BUSINESS, "PRANAM" THIRUVANGAD AMSOM, CHIRAKKARA DESOM, P.O.CHIRAKKARA, KANNUR DT.** **BY ADV. MR.A.MOHAMED MUSTAQUE** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT :-** **----------------------------------------------------------------------** **1. P.P.DARAR,S/O.IBRAHIM, NESIDA NIVAS,KOTTYAMPOYIL P.O, KOTTAYAM AMSOM DESOM.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** **PUBLIC PROSECUTOR MR.M.R.VENUGOPAL** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **V.K.MOHANAN, J.** ## **----------------------------Crl.R.P.No.1785 of 2010 --------------------------------Dated this the 11[th] day of June 2010** ## **O R D E R** The accused in a prosecution for the offence under Sec.138 of the N.I.Act is the revision petitioner, since he is aggrieved by the order of conviction and sentence imposed against him. 2. The case against the revision petitioner/accused is that he had borrowed a sum of Rs.50,000/- from the complainant during the year 1998 and towards the discharge of the said amount, the accused issued Ext.P1 cheque for a sum of Rs.50,000/- dated 31.3.1998 and when the said cheque presented for encashment, it was dishonoured for want of sufficient fund in the account maintained by the accused. Thereafter, a lawyer notice was caused to sent addressing the revision petitioner and demanding him to clear the above debt as per the Crl.R.P.No.1785 of 2010 : 2 : dishonoured cheque. But he has not paid the amount. Therefore, according to the complainant, the accused/revision petitioner has committed the offence under Sec.138 of the N.I.Act. With the above allegation the complainant preferred a formal complaint in the court of Judicial First Class Magistrate, Kuthuparamba upon which cognizance was taken under Sec.138 of the N.I.Act and there upon instituted C.C.No.245/2002. During the trial of the case, from the side of the complainant, PWs.1 and 2 were examined and Exts.P1 to P6 were produced and marked. From the side of the defence though Exts.D1 and D2 were produced, no witness was examined. On the basis of the above evidence and materials, the trial court has found that accused issued Ext.P1 cheque to discharge the legally enforceable liability and accordingly found that the accused is guilty under Sec.138 of the N.I.Act. Thus, the trial court convicted the revision petitioner under Sec.138 of the N.I.Act and sentenced him to undergo simple imprisonment for eight months and to pay a fine of Crl.R.P.No.1785 of 2010 : 3 : Rs.5,000/- in default to undergo simple imprisonment for three months. It is ordered that if the amount is realized, the same shall be given to the complainant, PW2 under Sec.357(3) of Cr.P.C. Aggrieved by the above order of conviction and sentence, the revision petitioner/accused had preferred an appeal and by judgment dated 26.3.2010 in Crl.A.No.403/2003, the Court of Sessions, Thalassery allowed the appeal only in part confirming the conviction but the sentence was reduced till the rising of the court and imposed a fine of Rs.50,000/- with default sentence of three months. It is the above conviction and sentence are challenged in this revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. On hearing the arguments advanced by the learned counsel and on perusal of the judgments of the courts below, it appears that, the main plea set up by the defence is to the effect that there was no proper service of Crl.R.P.No.1785 of 2010 : 4 : notice as contemplated by the provisions of the N.I.Act and Exts.D1 and D2 show that no transaction with the complainant connected with the cheque in question. The above contentions were considered by the trial court as well as the lower appellate court and the same were repelled stating that the revision petitioner has no case that the address shown, in the cover which sent to the revision petitioner, is wrong. The trial court after evaluation of the materials and evidence on record found that a formal demand notice was sent in the correct address and postal authorities sent intimation to the revision petitioner about the registered cover and on the basis of the decision in **1993(1)KLT 629 Sosamma v. Rajendran,** held that there is proper service of notice. In order to come into such conclusion, the trial court has also considered the decision in **2002(3) KLT Short note 64 page 46 (Joseph Jose v. Baby).** Another contention raised by the counsel for the revision petitioner is that the revision petitioner has Crl.R.P.No.1785 of 2010 : 5 : succeeded in disputing the claim of the complainant by producing Exts.D1 and D2. The said contention also considered by the court below. Ext.D1 is a statutory notice and when PW1 was examined it is admitted that he had received the amount demanded as per Ext.D1. So according to the trial court, Ext.D1 notice is not sufficient to disbelieve the prosecution case. Ext.D2 is an agreement for sale executed between the complainant and accused on 1.10.1996. The trial court after perusal of Ext.D2 came into the conclusion that there is nothing to show that Ext.P1 cheque is connected with the said transaction. Thus, the two points raised by the defence considered by the courts below in detail and found against the revision petitioner. The above finding based on facts would show that the revision petitioner has miserably failed to rebut the presumption, envisaged by Sec.139 of the N.I.Act, which is available in favour of the complainant since the complainant has already established his case by producing, convincing and cogent evidence. In the light of the above facts and Crl.R.P.No.1785 of 2010 : 6 : circumstances, I find no reason to interfere with the concurrent finding of the trial court as well as the lower appellate court. 5. The learned counsel for the revision petitioner submitted that the petitioner is ready to deposit the amount and to enable the petitioner to make such payment some time may be granted. I am of the view that the said submission of the learned counsel can be considered favourably but subject to other facts and circumstances involved in the case. 6. Admittedly the cheque is dated 31.3.1998 that for an amount of Rs.50,000/- and as per the records, the said amount belonging to the complainant and thus it can be seen that for the last 12 years the said amount is with the revision petitioner/accused. It is also relevant to note that though the trial court imposed sentence of eight months simple imprisonment, the lower appellate court reduced the said sentence into till the rising of the court. It is also relevant to note that the complainant has not filed any Crl.R.P.No.1785 of 2010 : 7 : appeal or revision against not awarding any amount of compensation, equal to that of the cheque amount. Further, the lower appellate court directed the revision petitioner to pay a sum of Rs.50,000/- to the complainant as compensation under Sec.357(1)(b) of Cr.P.C. and the default sentence is fixed only three months. The Apex Court in the decision in **Damodar S. Prabhu v. Sayed Babulal. H represented in J.T.2010(4) SC page 457,** held that in the matter of dishonour of cheque, the compensatory aspect remedy shall be given preference than the punitive aspect. In the light of the above facts and circumstances and the settled legal position, I am of the view that the petitioner can be granted three months time for depositing the fine amount subject to enhancement of the same reasonably. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. Thus, while confirming the sentence of imprisonment ordered by the lower appellate Crl.R.P.No.1785 of 2010 : 8 : court, the amount of fine fixed by the lower appellate court is enhanced to the tune of Rs.65,000/- in default, the revision petitioner is directed to undergo simple imprisonment for six months and if realization of the fine amount, only a sum of Rs.60,000/- need be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 9.9.2010 to receive the sentence and to deposit the fine amount. In case of any failure on the part of the revision petitioner in appearing before the trial court as directed above and making the deposit of fine amount, the trial court is free to take coercive steps against him to execute the sentence. ## **V.K.MOHANAN, JUDGE.** Jvt