K.V. Earnest v. Jomon Cheriyan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939** ## **Crl.Rev.Pet.No. 2648 of 2004 (A)** **---------------------------------** ## **CRA 259/2002 ADDITIONAL SESSIONS COURT NORTH PARAVUR** **ST 5401/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR** **----------** ## **REVISION PETITIONER/ACCUSED.:** **-------------------------------------------------** **K.V.EARNEST, KALATHIL VEEDU, U.C.COLLEGE P.O., ALUVA.** **BY ADVS.SRI.MATHEWS K.PHILIP SRI.RAJIV NAMBISAN** ## **RESPONDENT(S)/ RESPONDENT/COMPLAINANT.:** **--------------------------------------------------------------------** **1. JOMON CHERIYAN, MAMPILLY VEEDU, MARKET ROAD, NORTH PARUR.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.R.P.No.2648 of 2004 ----------------------------------------Dated this the 7[th] day of November, 2017 ## _**O R D E R**_ The revision petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.5401 of 1998 on the file of the Judicial First Class Magistrate Court, North Paravur, instituted on the basis of a complaint filed by the first respondent herein. 2. Exhibit P1 dishonoured cheque dated 30.5.1998 is for Rs.1,00,000/-. The trial court, as per the impugned judgment rendered on 15.4.2002, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.35,000/- to the complainant under Section 357(3) of the Cr.P.C. and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a further period of three months. Aggrieved thereby the petitioner had preferred Crl.Appeal No.259 of 2002 before the Sessions Court, N.Paravur. The appellate court concerned (Court of the Additional Sessions Judge, N.Paravur), as per the impugned judgment rendered on 6.8.2004, had dismissed the appeal confirming the conviction and the sentence : **:2::** Crl.R.P.2648/2004 imposed by the trial court. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 3. The instant revision petition was filed as early as on 19.10.2004. The case came up for admission on 20.10.2004, on which day this Court had admitted the Criminal Revision Petition, issued notice to the respondents and also passed interim order dated 20.10.2004 on Crl.M.A.No.12267 of 2004 in this Criminal Revision Petition directing that the execution of the sentence will stand suspended on the petitioner executing bond for Rs.15,000/- with two solvent sureties each and with further condition that the petitioner should deposit an amount of Rs.35,000/- within three months from 20.10.2004. Though this Court had ordered to take out notice to R1 (complainant) as early as on 20.10.2004, till date, the petitioner has not cared to pay process fee to take out notice to that party. The Registry has now endorsed that since the process fee has not been received, notice could not be sent to the first respondent even though P.P. has taken notice for R2/State. The matter had come up on 11.11.2015 before this Court, on which day it was noted by this Court that there was no representation for the petitioner/accused and that this Court had then ordered issuance of : **:3::** Crl.R.P.2648/2004 notice to R1 though the Inspector of Police, North Paravur and listed the case to 19.11.2005. Even in spite of this Court's order dated 19.11.2015, the petitioner has not cared to pay process fee to take out notice to R1. The said conduct of the petitioner would be nothing short of grave abuse of the process of this court. 4. The trial court has also now furnished report dated 28.10.2017 to the Registry of this Court informing that till date the petitioner has not deposited the amount of Rs.35,000/- in compliance with this Court's interim order dated 20.10.2004 passed in this revision. So in these circumstances, the revision petition could be easily dismissed for non prosecution. However, taking into consideration the fact that a substantive sentence of simple imprisonment for three months has been imposed on the petitioner, this Court is inclined to consider the merits of the matter. 5. The gist of the case of the complainant is to the effect that the accused had borrowed an amount of Rs.1,00,000/- on 16.3.1998 from the complainant with the promise to repay the said amount within two months and in discharge of the said liability, the accused had given Exhibit-P1 cheque dated 30.5.1998 for Rs.1,00,000/- which when presented resulted in dishonour as per Exhibit-P2 and Exhibit-P3 Bank memos. Thereupon, the complainant had caused to sent Exhibit-P5 : **:4::** Crl.R.P.2648/2004 statutory demand notice dated 5.8.1998, calling upon the accused to pay off the amounts covered by the cheque within a period of two weeks from the date of receipt of the said notice. The said notice was sent by registered post as per Exhibit-P4 postal receipt and was duly served on the accused. The accused had caused to sent Exhibit-P6 reply notice denying the liability. Thereupon the complainant, after complying with the procedural formalities, has initiated the present complaint which has led to the conduct of the trial in question. 6. During trial, the complainant has examined himself as PW1 and has marked Exhibits P1 to P9 documents. The defence has adduced evidence through DW1 to DW3 and has marked Exhibits D1 to D3 documents. 7. During trial, PW1 (complainant) has broadly deposed in tune with the contents of his complaint. The main defence set up by the accused was to the effect that the instant Exhibit-P1 cheque was given as blank signed one by the accused as security in a chit transaction in which the complainant was also one of the Directors of the chit Company. After meticulously examining the evidence of DW1 to DW3 as well as Exhibits-D1 to D3 documents, both the courts below have repelled the said defence evidence tendered on behalf of the accused. The genuineness of Exhibit-D1 chit agreement has been seriously : **:5::** Crl.R.P.2648/2004 called in question by the complainant and according to the complainant, it is a concocted document. The defence has cited one Elizabeth D'Cruz as a witness, but she had not turned up before the court to give evidence. The courts below found that even if she was examined, it would do no good to the defence as the written statement filed by her in the suit filed by the chit Company would show that the case of the accused that she was given amount by him cannot be believed. ExhibitP9 is the certified copy of the written statement filed by the abovesaid Elizabeth D'Cruz in O.S.No.483 of 1999. After meticulously considering the evidence and materials on record both the courts below have come to the considered conclusion that the evidence of PW1 is broadly believable and credible and that the defence plea taken up by the accused is not credible and reliable. It is in the light of these factual findings, both the courts below have found that the accused is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. These considered findings of fact made by the courts below which has led to the conviction of the petitioner, cannot be said to be vitiated by gross perversity or illegality. Therefore, it is not proper for this Court to interdict the said findings of fact by resort to the revisional powers conferred on this Court. 8. The trial court has sentenced the petitioner to undergo : **:6::** Crl.R.P.2648/2004 simple imprisonment for three months and to pay compensation of Rs.35,000/-. On default on the part of the petitioner to pay the said compensation amount, he was directed to suffer simple imprisonment for a period of three months. The appellate court has dismissed the appeal and has thereby confirmed the conviction as well as the sentence. 9. Going by the legal principles well settled by the Apex Court as in _**Damodar S.Prabhu v. Sayed Babalal.H** ._ reported in _**AIR 2010 Supreme Court 1907**_ and _**Kaushalya Devi Massand v. Rookishore**_ reported in _**AIR 2011 Supreme Court 2566**_ , the offence of dishonour of cheque envisaged in Section 138 of the Negotiable Instruments Act is essentially a civil wrong which has been given criminal overtones by the legislative amendments made by the parliament in the Negotiable Instruments Act and that instead of jail sentence, imposition of fine payable as compensation to the complainant would be sufficient to meet the ends of justice Therefore, unless there are extraordinary circumstances which warrant the imposition of a substantive sentence, imposition of appropriate fine amount would be sufficient to meet the ends of justice. In these circumstances, this Court is inclined to hold that the imposition of substantive sentence of simple imprisonment for three months would warrant interference. However, any such interference by : **:7::** Crl.R.P.2648/2004 introduction of the substantive sentence as simple imprisonment till the rising of the court should be subject to the condition that necessary justice is meted to the first respondent/complainant. The petitioner has not even bothered to take out notice to the first respondent. Exhibit P1 cheque for Rs.1,00,000/- was issued as early as on 30.5.1998. More than 19½ long years have elapsed after the issuance and dishonour of the said cheque for an amount of Rs.1,00,000/-. Therefore, this Court has the judicial obligation to ensure that justice is also meted out in a fair manner to the complainant, if the substantive sentence is reduced in favour of the accused. Therefore, it is ordered that the substantive sentence of simple imprisonment for three months will stand reduced to simple imprisonment till the rising of the court. Ordinarily in view of the long lapse of time at least twice the cheque amount should have been awarded. The Apex Court has held in the decision as in _**R.Vijayan v. Baby and another**_ reported in _(_ _**2012) 1 SCC 260**_ that apart from the cheque amount, the criminal courts should award interest @ 9% on the cheque amount from the date of cheque up to the date of actual payment. 9% interest on the cheque amount of Rs.1,00,000/- from 30.5.1998 up to now roughly come in the region of about Rs.1,70,000/However, to meet the ends of justice, this Court is of the view that the compensation amount of Rs.35,000/- should be enhanced to : **:8::** Crl.R.P.2648/2004 Rs.1,50,000/- in respect of the abovesaid dishonour of the cheque dated 30.5.1998 for Rs.1,00,000/-. ## 10. Accordingly, the following orders and directions are passed : - _(i) The impugned conviction imposed on the petitioner for the offence under Section 138 of the Negotiable Instruments Act will stand confirmed._ - _(ii) The substantive sentence of simple imprisonment for three months will stand modified and reduced as imprisonment till the rising of the court._ - _(iii) In supersession of the orders passed by the courts below, it is ordered that he petitioner shall pay a compensation amount of Rs.1,50,000/- under Section 357(3) of the Cr.P.C. The petitioner is given four months' time to remit the abovesaid amount before the trial court._ - _(iv) The petitioner shall personally appear before the trial court at 11 A.M. on 17.3.2018 to suffer the simple imprisonment till the rising of the court and to remit the compensation amount of Rs.1,50,000/- before the trial court. Needless to say on default of the petitioner to pay the said amount, he will have to suffer simple imprisonment for three months._ - _(v) On receipt of the compensation amount, the trial court will ensure that the said amount is disbursed to the complainant under Section 357(3) of the Cr.P.C. after issuing him notice of intimation in that regard to receive the said amount._ - _(vi) Until 17.3.2018, all further coercive steps for execution of the impugned sentence in this case will stand deferred._ : **:9::** Crl.R.P.2648/2004 - _(vii) On default of the petitioner either to appear before the trial court or on his default to pay the abovesaid compensation amount, the trial court will take necessary action against the petitioner in accordance with law._ The Registry will forward a copies of this order to the trial court, petitioner and the first respondent. With these observations and directions, the Criminal Revision Petition will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl