K.T.SIVAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936** **Crl.Rev.Pet.No. 1924 of 2014 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A 474/2003 of ADDL.SESSIONS COURT, FAST TRACK NO.-II, PALAKKAD DATED 29-06-2006** **AGAINST THE JUDGMENT IN CC 201/2002 of J.M.F.C.-II,PALAKKAD DATED 29-10-2003** **REVISION PETITIONER/APPELLANT/ACCUSED:** **-----------------------------------------** **K.T.SIVAN, S/O.LATE KANNI MOOTHAN, KARNAKI NAGAR, MOOTHANTHARA KODUVAYOOR, PALAKKAD.** **BY ADV. SRI.K.P.BALAGOPAL** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. M/S.SREELAKSHMI KURIES & LOANS (P) LTD., PALAKKAD REPRESENTED BY ITS MANAGER M.HARIDASAN (UNDER LIQUIDATION)-678001.** **3. OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R3-BY SRI.K.MONI,FOR OFFICIAL LIQUIDATOR R1 BY PUBLIC PROSECUTOR SRI.N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.1924 of 2014 .................................................. Dated this the 10[th] day of November, 2014. ## **O R D E R** The accused in C.C.No.201/2002 on the file of the Judicial First Class Magistrate Court-II, Palakkad is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the second respondent/complainant, which is under liquidation, against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner was a subscriber to the chitty conducted by the complainant and he bid the chitty and committed default in payment of the amount and in discharge of that liability, he had issued Ext.P3 cheque for an amount of Rs.20,728/-. The cheque when presented was dishonoured for the reason funds insufficient vide Ext.P4 dishonour memo which was intimated to the complainant by their banker vide Ext.P5 intimation letter. The complainant issued Ext.P6 notice to the revision Crl.R.P.No.1924 of 2014 2 petitioner vide Ext.P7 postal receipt intimating dishonour and demanded payment of the amount and the same was received by the revision petitioner evidenced by Ext.P8 acknowledgment. But he had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act .Hence the complaint. 3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the authorized person vide Ext.P1 resolution was examined as PW1 and Exts.P1 to P8 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had lost the cheque and this was somehow came to the hands of the complainant and misusing thatcheque, the present complaint was filed. No evidence was adduced on his side in defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act 3 Crl.R.P.No.1924 of 2014 convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay Rs.21,000/- as compensation to the complainant under Section 357 (3) of the Code, in default to undergo simple imprisonment for three months. Aggrieved by the same, the revision petitioner filed Crl.A.No.474/2003 before the Sessions Court, Palakkad which was made over to the Additional Sessions Court, Fast Track No-II, Palakkad for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Since the second and third respondents appeared through counsel namely the standing counsel for the official liquidator, this Court felt that the revision can be admitted, heard and disposed of merit today itself after hearing both sides. So the revision is admitted, heard and disposed of today itself. 5. The counsel for the revision petitioner submitted that a blank signed cheque which was lost was misused and the present complaint has been field. 4 Crl.R.P.No.1924 of 2014 6. The counsel for the respondents submitted that the document produced will go to show that the amount was due and the cheque was issued in discharge of that liability. The case of the complainant in the complaint was that the revision petitioner was a subscriber to the chitty for sala amount of Rs.50,000/- and he bid the chitty for a sum of Rs.35,000/- on 16.9.2007. He remitted some amount and committed default and thereafter issued Ext.3 cheque for Rs.20,728/- for the balance amount due in settlement of the accounts. In order to prove the case of the complainant, the authorised agent of the complainant was examined as PW1 and Ext.P2 security bond was produced. Further the signature in the cheque was disputed by the accused also. Issuance of the cheque was disputed by the accused. However, no evidence was adduced to prove that he had lost the cheque which has been somehow obtained by the complainant and the present complaint has been filed. The case of the revision petitioner appears to be totally unbelievable as well and he did not take any steps to inform the bank about the loss of the cheque. He did not send any reply to the notice issued as well. All these things will go Crl.R.P.No.1924 of 2014 5 to show that the case of the revision petitioner is not at all believable. So, the courts below were perfectly justified in convicting the revision petitioner/accused for the offence under Section 138 of the Act and the concurrent finding of the court below do not call for any interference. 7. As regards the sentence is concerned, the court below has sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay compensation of Rs.21,000/- to the complainant, in default to undergo simple imprisonment for three months under Section 357 (3) of the Code which was confirmed by the Additional Sessions Court by the impugned judgment. The Apex Court in **Damodar S. Prabhu v. Sayed Babalal H.** (JT 2010 (4) SC 457), has held that though the offence under Section 138 is a quasi civil in nature and the intention of the legislature was to make the drawer of the cheque to pay the amount to the payee and so the amount has to be recovered and paid to the payee instead of sending the drawer to jail. Further, now complainant company is under liquidation and the third respondent liquidator has been appointed to manage the affairs of the second respondent 6 Crl.R.P.No.1924 of 2014 company under liquidation. So considering the circumstances, this Court feels that the substantive sentence of imprisonment can be avoided and the sentence can be confined into fine and then direct the same to be paid to the official liquidator appointed to manage the affairs of the second respondent company and if amount is directly paid and any evidence is produced before the concerned court and if it is being acknowledged by the official liquidator, then the court below can be directed to record that fact in the respective fine register as provided in **Beena v. Balakrishnan Nair & another** (2010 (2) KHC 851) and **Sivankutty v. John Thomas & another** (2012 (4) KLT 21). 8. So, the sentence is modified as follows: The revision petitioner is sentenced to pay a fine of Rs.21,000/- in default to undergo simple imprisonment for three months. The fine amount if realised, be paid to the 3[rd] respondent official liquidator on behalf of the 2[nd] respondent company who can receive the amount and account in the account of the 2[nd] respondent company. If the revision petitioner pays the amount directly to the official liquidator and produces 7 Crl.R.P.No.1924 of 2014 receipt for the same before the concerned court, and that is being acknowledged by the official liquidator, then the lower court is directed to treat the same as substantial compliance of the directions of the trial court as confirmed by this Court and record the same in the respective fine register as provided in ## **Beena's and Sivankutty's cases** (cited supra). With the above modification of the sentence alone, this revision petition is allowed in part. The revision petitioner is granted two months time till 10.1.2015 to pay the amount. Till then, the execution of the sentence is directed to be kept in abeyance. Office is directed to communicate this order to the court below at the earliest. Sd/- ## **K.RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge