Krishnakumar (Unni) Proprietor, Kripa Films, Vijayasaras near SBT Head Office, Poojappura PO, Thiruvananthapuram v. State of Kerala and B. Sreekanth Remya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA 1933** **CRRP.No. 2164 of 2010 ( )** **------------------------CRA.793/2006 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM ST.229/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - VII, THIRUVANANTHAPURAM ------------------** **REVISION PETITIONER / ACCUSED :** **-------------------------------** **KRISHNAKUMAR (UNNI) PROPRIETOR, KRIPA FILMS, VIJAYASARAS NEAR SBT HEAD OFFICE, POOJAPPURA PO THIRUVANANTHAPURAM.** **BY ADVS.SRI.S.GOPAKUMARAN NAIR (SR.) SRI.M.CHANDRA BOSE SRI.N.SREEKUMAR (ELAMAKKARA) SRI.A.RAJASIMHAN** **RESPONDENTS / STATE AND THE COMPLAINANT :** **-----------------------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **2. B.SREEKANTH REMYA ,T.C.17/1424, POOJAPPURA 695 102 THIRUVANANTHAPURAM.** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN R2 BY ADVS. SRI.SUDHEER GANESH KUMAR.R. SRI. K.SIJU SRI.A.MUHAMMED RAFFI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD** **ON 03-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **...2/-** **Mn** ## **CRRP.No. 2164 of 2010 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURE'S** **ANNEXURE A 1 : COPY OF THE WILL DATED 3/4/1997. ANNEXURE A 2 : COPY OF THE WILL DATED 30/9/2000. ANNEXURE A 3 : COPY OF THE SETTLEMENT DEED DATED 23/7/2001. ANNEXURE A 4 : COPY OF THE CHEQUES DATED ANNEXURE A 5 : COPY OF THE ENCUMBRANCE CERTIFICATE DATED 27-3-2008.** **RESPONDENT'S ANNEXURE'S - NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **P.BHAVADASAN, J.** ---------------------------------------------------Cr.RP No.2164 of 2010 ---------------------------------------------------Dated this the 3[rd] day of February 2012 ## Order The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty and was therefore, convicted and sentenced to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.5,000/- a compensation to be paid to the complainant with a default clause of simple imprisonment for three months. In appeal, the lower appellate court found no reasons to interfere with the conviction and sentence and accordingly dismissed the appeal, confirming the same. 2. The parties are closely related. In fact, the complainant is the brother-in-law of the accused. The accused is stated to be a film producer and distributor. According to the complainant, the accused had borrowed a sum of Rs.4,30,000/- from him and in discharge of the CRRP 2164/10 2 liability incurred, three cheques – Exts.P1 to P3 dated 8.11.2001 for Rs.2,30,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively were given to him by the accused. The cheques, when presented for encashment, returned for want of money in the account of the accused. The statutory notice issued to the accused invoked no response. Therefore, a complaint was laid before court. 3. Cognizance of the offence was taken by the trial court. On appearance of the accused, the particulars of the offence were read out to him to which he pleaded not guilty and claimed to be tried. The complainant, therefore, examined PW1 and marked Exts.P1 to P7. On the close of the complainant's evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. His case was that in the year 1999, he initially borrowed a sum of Rs.2,25,000/- and gave three blank cheques tot he complainant. Subsequently, he had borrowed Rs.1,75,000/- CRRP 2164/10 3 from the complainant and at that time, the complainant insisted for signed blank cheques and signed blank papers. His further case was that the entire liability to the complainant has been discharged by his father by selling an item of immovable property which, as per a Will of the father of the accused, was bequeathed to the accused and also by endorsing a cheque received by the father of the accused from one Manikyam, in favour of the complainant. He examined himself as DW1 and his brother-in-law as DW2. 4. The courts below, on an appreciation of the evidence in the case, came to a conclusion that the plea of discharge has not been established and the evidence of DW2 is insufficient to show that the claim of discharge as pleaded by the accused is correct. On that basis, the courts below found the accused guilty and the conviction and sentence as already mentioned followed. 5. The learned counsel for the revision petitioner pointed out that the courts below have not appreciated the CRRP 2164/10 4 evidence in the proper perspective and have not adverted to the principles of law applicable to the case and that has resulted in miscarriage of justice. Attention was drawn to the fact that the statement made by the accused is that he had issued blank cheques to the complainant for having borrowed Rs.2,25,000/- initially and Rs.1,75,000/- later on and if that be so, it is for the complainant to show that the cheques were duly executed by the accused. The mere admission of signature or the issuance of a blank cheque will not be sufficient to clothe the accused with the liability. It is also contended that the lower appellate court was wrong in observing that no reply was sent to the statutory notice issued by the complainant to the accused. Ext.D2 is the reply sent to the statutory notice. It is also pointed out that it is quite inconceivable that a person who was already indebted to the tune of Rs.4 lakhs will be given further amount by the complainant. Emphasis was laid on Ext.D6 notice said to have been issued by the complainant which would show that there were other transactions also. But, in CRRP 2164/10 5 the complaint as well as at the time of evidence, PW1 took the stand that there was only one transaction between the complainant and the accused and that is the transaction in question. It is also pointed out that a suit is pending before the Sub Court, Thiruvananthapuram in relation to the very same matter. In support of his contentions, the learned counsel for the revision petitioner relied on the decisions in **Padmanabhan v. Vasudevan Namboodiri** (2010(3) KLT 216, **Gemini v. Chandran** (2007(2) KLT 439), **Joseph v. Gladis Sasi** (2010(3) KLT 379) and **Shaju v. Poulose** (2009(4) KLT SN 49). 6. The learned counsel for the respondent, on the other hand, pointed out that the plea of the accused is one of discharge and if that be so, the burden is on him to establish the said fact. The issuance of the cheque is admitted. But, according to the accused, his father had discharged the debt and if that be so, it is for him to establish the plea of discharge. It is pointed out that the CRRP 2164/10 6 accused has a case that he had documents to establish the plea of discharge, but for reasons best known to him, he chose not to produce them. Both the courts below have referred to the evidence of DW2 and have come to the conclusion that he has only hearsay knowledge about the discharge of the liability. The learned counsel went on to point out that there is no suggestion to PW1 that the particulars in the cheque had been filled up by him. Ext.D6 cannot come to the aid of the accused for the simple reason that the complainant had stated that he had no previous transaction with the accused. Both the courts below have appreciated the evidence on record and have come to the identical conclusion that the offence is made out and unless it is shown that the appreciation of evidence is perverse or that the findings are unwarranted by the evidence on record, interference under the revisional jurisdiction will not be permitted. 7. At the outset, one may notice that one can have no quarrel with the principles laid down in the various CRRP 2164/10 7 decisions relied on by the learned counsel for the revision petitioner. It is well established that merely because a signed cheque is issued, it does not mean that the execution of the cheque is admitted. That has to be proved by the complainant concerned. It is also well settled by now that the drawing of a cheque means the conscious act of issuing a cheuqe with the knowledge that he is executing to discharge a debt. In order to attract the provisions of Sections 139 and 180 of the Negotiable Instruments Act, it is necessary for the complainant to show that the cheque was duly executed by the accused. 8. The question is how far the principles contained in the decisions relied on by the learned counsel for the revision petitioner are applicable to the facts of this case. In the case on hand, the complainant had given evidence as PW1 and had marked Exts.P1 to P7. The case of the accused was that he had borrowed only Rs.4 lakhs from the complainant on two occasions, i.e., R.2,25,000/at the first instance and Rs.1,75,000/- subsequently. CRRP 2164/10 8 Similarly, at the first instance, he gave three singed blank cheques and subsequently, eight signed blank cheques and signed blank papers. His further case is one of discharge of the debt due to the complainant. It is true that the accused had sent Ext.D2 reply to the complainant showing that there was another transaction for which the cheques were issued by the accused. Relying on the numbers of the cheques in that notice, it was contended on behalf of the revision petitioner that it can be seen that the claim of the complainant is false. 9. Both the courts below have noticed that there is no evidence regarding the plea of discharge made by th accused. It is also significant to notice that there is no specific denial of signature on the cheques produced by the complainant even though it is stated that three cheques issued were blank cheques. The courts below have not referred to any statement of DW1 to indicate that the particulars of the cheque were fraudulently inserted by the complainant nor was there a suggestion to that effect to CRRP 2164/10 9 PW1. 10. Coming to the plea of discharge, the case of the accused was that his father had sold an item of immovable property which, as per his Will, was allotted to the accused and had paid that amount to the complainant. His further case was that the cheque received from Manikyam was also handed over by the father of the accused to the complainant for discharge of the debt and thus, the entire debt was discharged. 11. There is no evidence regarding sale of the immovable property or regarding the handing over of the cheque issued by Manikyam to the complainant. Of course, there is the evidence of DW1 which can be treated only as a self-interested testimony. Both the courts below have considered the evidence of DW2 in considerable detail and have held that his evidence is only a hearsay evidence and he has not seen the transaction personally. 12. The lower appellate court has observed that the accused had, in fact, a case that he had documents to CRRP 2164/10 10 prove the plea of discharge. But, none of them was produced by him. It is also noticed by the lower appellate court that according to the accused, his mother had full and direct knowledge about the discharge of the liability. If that be so, it would have been only proper to examine the mother of the accused in support of his plea of discharge. 13. As rightly noticed by the courts below, there is absolutely no evidence regarding any payment made to the complainant for any of the transactions between the complainant and the accused. Apart from the above facts, if as a matter of fact, the liability was discharged, there would have been some attempts from the side of the accused to get back the cheques or at least to issue stop memos to the bank. There was no action from his side to see that the cheques were not misused. Of course, the accused has an explanation that being the brother-in-law, he did not want to displease him. But the fact remains that there is no evidence for discharge of the debt by the accused, even though he claimed that he has received CRRP 2164/10 11 Rs.4 lakhs and issued signed blank cheques to the complainant. 14. The plea, one being one essentially of discharge, the courts below were perfectly justified in coming to the conclusion that the complainant is entitled to the presumptions under Section 139 and 118 of the Negotiable Instruments Act. When the accused says that he has got documents to prove discharge, it was his obligation to produce and establish the plea of discharge. Viewed from any angle, the courts below are perfectly justified in coming to the conclusion that in the absence of any materials or convincing evidence of discharge, the same cannot be accepted. Once the plea of discharge fails, then it follows that Exts.P1 to P3 were issued for discharge of the liability due to the complainant. Both the courts below have appreciated the evidence in considerable detail and have come to identical conclusion. As rightly contended by the learned counsel for the respondent, the revision petitioner is unable to show that the findings of the CRRP 2164/10 12 courts below are either perverse or unwarranted by the evidence on record. It could not be said that the findings are totally unfounded. If that be so, interference under the revisional jurisdiction is quite uncalled for. 15. Faced with the above situation, the learned counsel for the revision petitioner pointed out that the sentence imposed is disproportionate to the offence and it does not serve the interest of justice. He therefore prayed that considering the relationship between the parties and also the willingness of the accused to pay the amount, some leniency may be shown to him regarding the sentence imposed by the courts below. 16. There seems to be some force in the above submission. The parties are close relatives. Therefore, the sentencing the accused to a term of imprisonment will only make the relationship more bitter. If interest of justice can be served by interfering with the sentence, modifying the sentence will be fully justified. CRRP 2164/10 13 17. In the result, while confirming the conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, the sentence awarded by the courts below is set aside and the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and also to pay a sum of Rs.4,30,000/- (Rupees Four Lakhs Thirty Thousand only) to the complainant as compensation within six months from today, failing which the accused shall suffer a further imprisonment of six months. If the amount of compensation is paid and the suit in relation to the very same subject matter, is decreed, the amount so paid shall be given credit to in execution of the decree. 18. It was then pointed out by the learned counsel for the revision petitioner that in pursuance of the order passed by this court, a sum of Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand only) has already been deposited by him. If that be so, the said amount shall be CRRP 2164/10 14 adjusted towards the amount payable by the accused. The complainant is permitted to withdraw the said amount. ## **P.Bhavadasan, Judge** sta ## **CORRIGENDUM** The figure and words “Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand only) occurring in the 18[th] paragraph of the order dated 3.2.2012 in Crl.RP No.2164/2010 are corrected and substituted as “Rs.1,50,000/- (Rupees One lakh and fifty thousand only)” vide order 21.6.2012 in Crl.M.A.4390/2012 in Crl.R.P.No.2164/2010. Sd/-Registrar (Judicial) CRRP 2164/10 15