K.P. Soopy v. Moidu Haji @ Moidu Haji and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932** **Crl.Rev.Pet.No. 1493 of 2007()** **------------------------------** **CRA.352/2006 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA CC.30/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NADAPURAM)** **....................** ## **REVN. PETITIONER(S): APPELLANT/ACCUSED** **--------------------------------------** **K.P.SOOPY, S/O.MOIDU, THERUVATH HOUSE, KUTTIADI P.O., VADAKARA, KOZHIKODE DISTRICT.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT//RESPONDENT NO.1/COMPLAINANT & STATE** **--------------------------------------------------------------------------------------** **1. MOIDU HAJI @ MOIDU HAJI, PERODE, S/O.KUNHISOOPY, PUTHAPURAYIL HOUSE, REPRESENTED BY HIS WIFE AND POWER OF ATTORNEY HOLDER SMT.P.K.KHADEEJA.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VK** ## **V.K.MOHANAN, J.** ## **-----------------------------------------Crl.R.P. No. 1493 of 2007** **----------------------------------------** Dated the 21[st] Day of February , 2011 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The complainant and accused are close relatives. According to the complainant, the accused and his wife started a joint business venture with the complainant though the complainant was not interested in the joint venture and he had taken a shop room situated in Kuttiadi Panchayat in lease to help the accused and gave possession of the shop wherein the accused started a business. The accused borrowed an amount of Rs.2,50,000/- from the complainant towards the said business. According to the complainant, though the accused agreed to repay the same on or before 31.12.2001, the amount was not repaid and thereafter an agreement was entered into on 19.1.2002 CRL.R.P.No.1493/07 **-:2:-** between the accused and the complainant in the presence of mediators and time was extended till 18.7.2003 for repayment of the amount. It is the further case of the complainant that, in order to discharge that liability the accused issued a post dated cheque dated 20.7.2003 for an amount of Rs.2,50,000/-. But when the said cheque was presented for collection, the same was dishonoured for want of sufficiency of fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class MagistrateII, Nadapuram by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.30/2006. During the course of trial, PW1 was examined and Exts.P1 to P8 were marked from the side of the complainant and from the side of the defence, DW1 was examined and Exts.D1 to D10 were marked. Finally, After evaluation of the evidence and the materials on record, the trial court has found that Ext.P2 CRL.R.P.No.1493/07 **-:3:-** cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and to pay compensation of Rs.2,50,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of six months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 2.2.2007, in Crl.A.No.352/2006, the court of Addl. District & Sessions Judge, Vadakara, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and reduced to simple imprisonment for three months. CRL.R.P.No.1493/07 **-:4:-** The direction to pay compensation , compensation amount and the default sentence etc were confirmed. It is the above order of conviction and sentence and the judgments of the courts below challenged in this Crl.R.P. 4. I have heard sri Kaleeswaram Raj, the learned counsel appearing for the revision petitioner and Sri M.P.Ramnath, the learned counsel appearing for Ist the respondent. I have also perused the judgment of the courts below and also the evidence and materials. 5. The learned counsel for the revision petitioner vehemently submitted that the cheque in question was given as security for the transfer of the shop premises on the basis of oral agreement and the complainant has miserably failed to perform his part of contract and therefore there is no consideration in pursuance of the cheque in question. On the other hand, the learned counsel for the contesting respondent submitted that the transaction between the complainant and the revision petitioner/accused as envisaged by the provisions of Ext.P6 agreement dated 19.1.2002 and in view of the clause CRL.R.P.No.1493/07 ## **-:5:-** contained therein, possession was given then and there, but the cheque in question which recited in the agreement when presented for encashment, dishonoured for insufficiency of funds in the account maintained by the accused and therefore Ext.P2 cheque was issued towards the discharge of the liability due to the complainant as evidenced by Ext.P6, and therefore, the trial court as well as the appellate court has rightly convicted the revision petitioner and there is no scope for any interference. 6. I have carefully considered the arguments advanced by both the counsel and I have perused the documents , particularly Ext.P6 agreement. It is relevant to note that there is no dispute that Ext.P2 cheque was executed and issued by the accused. The only contention is that possession of the shop room in question was not given to the revision petitioner/accused and therefore, there is failure on the part of the complainant to perform his part and therefore there is no passing of consideration so as to honour Ext.P2 cheque. On a perusal of Ext.P6 agreement, it is obvious that the possession of the shop CRL.R.P.No.1493/07 **-:6:-** room in question is given to the revision petitioner/accused who was conducting the business, right from the starting of the business and it is specifically incorporated in Ext.P6 agreement that it is for the accused to get kychit from the real owner of the shop. It is seen from Ext.P6 that Ext.P2 cheque was mentioned in the said agreement. Therefore, I have no hesitation to hold that Ext.P2 cheque was issued towards the discharge of the liability due to the complainant as per the transaction between the complainant and the accused as evidenced by Ext.P6 agreement. Therefore, I find no reason to interfere with the order of conviction concurrently recorded by the trial court as well as the appellate court. 7. As this court is not inclined to interfere with the conviction, the learned counsel submitted that the sentence of imprisonment imposed against the revision petitioner is unreasonable and exorbitant. 8. Having regard to the facts and circumstances involved in the case, especially, that the parties are close relatives, I am of the view that the sentence of CRL.R.P.No.1493/07 ## **-:7:-** imprisonment ordered against the revision petitioner requires reconsideration and at the same time, the interest of the complainant is also to be protected. In the present case, the cheque in question is dated 20.7.2003 and even though the appellate court judgment is dated 2.2.2007, so far no amount is paid to the complainant. The Apex Court, in its recent decision in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Having regard to the above facts and the settled legal position, I am of the view that the sentence of imprisonment can be reduced into one day simple imprisonment and at the same time, the order to pay compensation can be set aside, and in addition to the sentence of imprisonment, he can be sentenced to pay fine and fine amount can be enhanced considering the fact that the amount is due to the complainant for the last 7 years. In the result, this Crl.R.P is disposed of confirming CRL.R.P.No.1493/07 **-:8:-** the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below and accordingly, the sentence of imprisonment modified by the appellate court is again modified and reduced to one day simple imprisonment i.e. till the rising of the court. The direction to pay compensation under section 357(3) Cr.P.C. is set side. In addition to the sentence of imprisonment, the revision petitioner is also sentenced to pay a fine of **Rs.3,15,000/-** , within three months from today. In default, he is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before trial court on **23[rd] May, 2011** to receive the modified sentence and to pay the fine amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. On realsation of the fine amount, a sum of Rs.3,10,000/- shall be paid to the complainant as CRL.R.P.No.1493/07 ## **-:9:-** compensation under section 357(1)(b) Cr.P.C. and the remaining amount of Rs.5000/- shall be deposited in the State Exchequer. Coercive steps, if any, pending shall be deferred till 23.5.2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-