K.S. Jenivas v. A. Absalam and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935** **Crl.Rev.Pet.No. 349 of 2004 (C)** **--------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 296/2003 of SESSIONS COURT (ADHOC-I), ERNAKULAM DATED 21-10-2003** **AGAINST THE ORDER/JUDGMENT IN CC 249/1998 of CHIEF JUDL.MAGISTRATE, ERNAKULAM DATED 20-03-2003** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-------------------------------------------------------------------------** **K.S. JENIVAS, KOCHUCHALIL HOUSE, THANTHONITHURUTH, MULAVUKAD, KOCHI.** **BY ADV. SRI.C.P.SAJI** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE::** **---------------------------------------------------------------------------------------** **1. A. ABSALAM, BAVAS COLONY, PULLEPPADY, ERNAKULAM, REPRESENTED BY P.A. JOHN VICTOR.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.JOSEPH KATTIKKARAN R2 BY PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **LSN** ## **P. UBAID, J. - - - - - - - - - - - - - - - - - Cr.R.P No.349 of 2004** **- - - - - - - - - - - - - - - -** Dated this the 14[th] day of March, 2014. ## **O R D E R** The revision petitioner herein challenges the conviction and sentence against him under Section 138 of Negotiable Instruments Act, made by the learned Chief Judicial Magistrate, Ernakulam, and confirmed in appeal by the Sessions Court, Ernakulam. The first respondent herein filed a complaint against the revision petitioner before the trial court on the allegation that the revision petitioner had borrowed an amount of Rs.45,000/- from him, in discharge of which a cheque was issued by the revision petitioner, but the cheque was bounced due to insufficiency of funds when he presented it for collection in the Bank. It is alleged that in spite of statutory notice, the accused did not make payment of the cheque amount. The defence pleaded by the accused in the trial court is that he had no transaction of borrowal with the complainant, and that the cheque in question was in fact handed over by him to one Thambi @ Arunagiri as a Cr.R.P No.349 of 2004 2 security when he borrowed an amount of Rs.10,000/from the said Thambi. His case is that the complainant somehow procured the said cheque from Thambi, and filed this false complaint against him. 2. The accused (revision petitioner) pleaded not guilty when the substantiate of accusation was read over and explained to him by the learned Magistrate, and the case proceeded for trial. The Power of Attorney holder of the complainant was examined as PW1 and Exts. P1 to P8 were marked on the side of the complainant. The accused examined himself as DW1 with permission under Section 315 of Cr.P.C and he also examined the said Thambi @ Arunagiri as DW2 to substantiate of his case. The said Thambi however, did not support him during trial. On an appreciation of the evidence, the trial court found that Ext.P2 cheque in question was in fact issued by the accused in discharge of a legally enforceable debt, and that there was failure on his part to make payment in spite of statutory notice. Accordingly, by judgment dated 23.3.2003 in C.C No. 249/1998, the trial court found the Cr.R.P No.349 of 2004 3 accused as guilty under Section 138 of NI Act. On conviction he was sentenced to undergo simple imprisonment for three months, and was also directed to pay a compensation of Rs.50,000/- under Section 357(3) of Cr.P.C. Challenging the conviction and sentence the accused filed Cr.Appeal No. 296/03 before the Sessions Court, Ernakulam. On an appreciation of evidence, the appellate court concurred with the trial court and confirmed the conviction by judgment dated 21.10.2003 in Cr.Appl. No. 296/03. However, the sentence was modified by the appellate court and the substantive sentence was reduced to imprisonment till raising of the court. The direction to pay compensation with default sentence thereon was maintained. Now, the accused is before this Court in revision, challenging the legality of conviction and sentence. 3. One legal aspect argued by the revision petitioner before this Court is that the person who adduced evidence on behalf of the complainant as his power of attorney is in fact incompetent to give evidence, Cr.R.P No.349 of 2004 4 because he is a person having no direct knowledge about the transaction. The learned counsel cited the decision of the Honourable Supreme Court in **Narayanan v. State of Maharashtra** reported in **2013(4) KLT 21 SC,** wherein a Full Bench of the Honourable Supreme Court held that a Power of Attorney Holder can give evidence in a prosecution Section 138 of NI Act only if he is a person having knowledge of the transaction alleged, except in cases were the complainant is a proprietary concern represented by an attorney holder under a Power of Attorney executed by the proprietor 4. On an appreciation of the evidence, this Court finds that PW1, who is none other than the son of the complainant, examined as his Power of Attorney Holder, has given definite and consistent evidence regarding the alleged transaction of borrowal and also regarding the issuance of Ext.P1 cheque in question. Of course it is seen that in examination in chief, PW1 has no stated in so many words that he has direct knowledge about the alleged transaction of borrowal, or the alleged issuance of Cr.R.P No.349 of 2004 5 cheque. But all these necessary details were well brought out in cross-examination. In view of such a definite evidence brought out by the defence in crossexamination, this Court finds that the case of the complainant in this case cannot be rejected by applying the decision cited by the learned counsel. 5. This is a case where the accused would admit his signature in Ext.P1 cheque, subjected to his contention otherwise that it was handed over as a signed cheque, but bank otherwise, without making any other entry, to DW2, when he borrowed an amount of Rs.10,000/- from DW2. But DW2 did not support the accused in evidence. Thus there is no independent and satisfactory evidence to prove the transaction pleaded otherwise by the accused. He has no satisfactory explanation by any convincing evidence, as to how Ext.P1 cheque came in the hands of the complainant, if not in a transaction of borrowal as alleged in the complaint. In a case where a signed cheque is handed over by the maker of the instrument himself much evidence is not required Cr.R.P No.349 of 2004 6 to prove the elements of execution. This is a case where Ext.P1 cheque, admittedly bearing the signature of the accused, was handed over by him. His case stands not proved that it was in fact handed over to DW2. PW1 is definite that the cheque was in fact was handed over to his father by the accused and he knows about this directly. This Court finds that the complainant has well proved the alleged transaction of borrowal, or that the cheque is supported by consideration. 6. The complainant had well complied with the statutory requirements under Section 138 of NI Act. Ext.P5 is the copy of the statutory notice sent by the complainant in time. The accused has no explanation why he did not send reply to the statutory notice, or why he did not make payment of the cheque amount as demanded in the statutory notice. It stands prove by the evidence of PW1 and also Ext.P3 and P4 documents that Ext.P2 cheque was dishonoured due to insufficiency of funds. The accused has no case that he had sufficient funds in his account to honourable cheque, or that the Cr.R.P No.349 of 2004 7 cheque was bounced on some other ground. This Court finds that the complainant has well proved all the necessary elements of the offence punishable under Section 138 of NI Act. 7. This Court does not find any reason or scope for interference in the judgment of conviction made by the two courts below. Though, the trial court imposed a sentence of imprisonment for three months, the appellate court reduced it to the minimum possible under the law. In the particular facts and circumstances, where the complainant has not initiated civil action, this Court finds no scope for interference in the direction to pay compensation. This Court finds that this revision is meritless, and is liable to be dismissed. In the result, this revision petition is dismissed. ## **Sd/-P. UBAID, Judge** True Copy P.A to Judge lsn