K.V. VASU v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939** **Crl.Rev.Pet.No. 1677 of 2016** **----------------------------** **JUDGMENT DATED 11.3.2016 IN Crl.A. 214/2015 OF ADDITIONAL DISTRICT COURT-II, KOZHIKODE JUDGMENT DATED 27.3.2015 IN ST 31/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NADAPURAM** **.....** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:-:** **------------------------------------------** **K.V. VASU, S/O.POKKAN, AGED 42 YEARS, KARUVULLAM VEETTIL HOUSE, P.O.VELAM, KOZHIKODE - 673 507.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT:-:** **------------------------------------------------** **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. N.R.RAVEENDRAN,** **S/O.RAGHAVAN, AGED 48 YEARS, RESIDING AT NARUVALLIL HOUSE, P.O.KUNDUTHODE, KOZHIKODE - 673 513.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY R2 BY ADV. SRI.SUNNY MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ALEXANDER THOMAS, J. ================== Crl.R.P.No. 1677 of 2016 ================== Dated this the 5[th] day of April, 2017 O R D E R The petitioner is the accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act in S.T.No.31/2014 on the file of the Judicial First Class Magistrate's Court-II, Nadapuram, on the basis of a complaint instituted by the 2[nd] respondent herein. The trial court as per the impugned judgment rendered on 27.3.2015 had convicted the petitioner for the abovesaid offence in this case and had sentenced to undergo simple imprisonment till rising of the court and to pay an amount of Rs. 1 lakh (cheque amount) to the complainant by way compensation under Sec.357(3) of the Cr.P.C. and in default thereof, to udnergo simple imprisonment for a further period of 3 months, etc. Aggrieved thereby, the petitioner had preferred Crl.Appeal No. 214/2015 before the Sessions Court, Kozhikode. The appellate court concerned (the Court of II Addl. Sessions Judge, Kozhikode) as per the impugned judgment rendered on 11.3.2016 has dismissed the appeal, thereby has confirmed the impugned conviction and sentence. It is challenging the concurrent verdicts of both the courts below that the petitioner has preferred this Criminal Revision Petition taking recourse to the remedies conferred under Sec.397 read with Sec. 401 of the Cr.P.C. 2. Heard Sri.C.S.Manu, learned counsel appearing for the revision petitioner accused, Sri.Sunny Mathew, learned counsel appearing Crl.R.P.1677/16 - : 2 :- for R-2 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 3. The gist of the prosecution case is that on account of the debt owed by the accused to the complainant, the revision petitioner accused had executed and issued Ext.P-1 cheque dated 3.4.2014 for an amount of Rs.1 lakh drawn from his account, in favour of the complainant, which when presented was returned by the bank as per Ext.P-2 memo dated 23.3.2014 on account of insufficiency of funds. Thereupon, the complainant had sent statutory demand notice in terms of proviso (b) of Sec.138 of the Negotiable Instruments Act. As per Ext.P-3 statutory demand notice dated 29.4.2014, was sent by registered post, and was duly served on the accused to which the accused had sent Ext.P-6 notice dated 12.5.2014 denying the transaction and the execution of the cheque, etc. Thereupon, the complainant has proceeded to institute the instant complaint, which led to the conduct of the trial. 4. During the trial the complainant had examined himself as P.W-1 and has marked Exts.P-1 to P7 documents. But the defence has not chosen to adduce any oral or documentary evidence. 5. P.W-1 (complainant) has deposed mainly in consonance with the contents of the his complaint. He deposed that he is a security personal working in the Taluk Government hospital, Kuttyadi, for the last 10 years and that he is an ex-service man and that the accused is a Crl.R.P.1677/16 - : 3 :- person, who is conducting a hotel business just in front of the Taluk Government Hospital, Kuttyadi and that both the persons had known each other for quite some time and that the complainant used to take food from the hotel of the accused and thus there had been close friendship with the accused. In September 2013, the accused had requested the complainant to give Rs.1 lakh as loan, which was promised to be returned within 2 months. Thereupon, the complainant, P.W-1 had withdrawn Rs.1 lakh on 5.9.2013 from his bank account maintained at Kakkattil Co-operative Rural Bank, Kuttyadi and the said amount was handed over to the accused on 5.9.2013. Later the accused had given Ext.P-1 cheque dated 3.4.2014 drawn from his account in favour of the complainant for an amount of Rs.1 lakh for returning the amount covered by the said loan transaction, which when presented, resulted in dishonour, etc. as stated above. 6. Ext.P-7 is the bank ledger statement, which would show that the complainant had withdrawn Rs.1 lakh from his aforementioned bank account on 5.9.2013. P.W-1 had also stated about his financial state of affairs, etc. He had also deposed that the cheque in question was given in the hotel premises of the accused. The entries in the cheque, except the signature, were written by the accountant of the accused's hotel and seal of the complainant was also affixed by the accused himself and that the accused had appended his signature, etc. Crl.R.P.1677/16 - : 4 :- 7. The main attempt of the defence, while cross examination of P.W-1 is to the effect that the complainant was running a chit business inside the hotel premises of the accused and that he had access to the inner premises of the hotel and that the abovesaid cheque of the accused must have been stolen by the complainant. Various other attempts were also made to challenge the source of the income of the complainant and also suggested the court that the complainant was running a chit business inside the hotel premises. The trial court came to the considered conclusion that, except making these suggestions, the accused has not been able to bring out any clinching factual circumstances from the cross examination of P.W-1 to even remotely vindicate the said suggestion made by the accused. Moreover, the accused had not adduced any independent evidence as well. Therefore, both the courts below found that the version projected by the accused is not probable or credible. The accused could have easily adduced some evidence to show from independent witnesses, as a matter of fact, that the complainant was at least running chit business in the hotel premises of the accused. Whereas the trial court found that the evidence given by P.W-1 was quite straight forward and simple and was nothing unbelievable about it and there was no lack of credibility in the said evidence tendered by P.W-1. It is in the light of these aspects, that the trial court found that the complainant has been able to prove, not only Crl.R.P.1677/16 - : 5 :- the transaction but also the aspects relating to the execution and issuance of the cheque in question. It is also relevant to note the Apex Court in the judgment in T.Vasantha Kumar v. Vijayakumari, reported in (2015) 8 SCC 378, more particularly in para 9 thereof that where the signature has been accepted by the accused and the cheque is issued from an account maintained by the accused, then the statutory presumption under Sec.139 would operate and so the burden is cast on the accused to disprove the cheque or the existence of any legally recoverable debt or liability, at least on the basis of preponderance of probability and that in the absence of adducing such cogent and credible rebuttal evidence, the accused is liable to be convicted for the abovesaid offence etc. In the instant case also, there has no been no serious dispute as regards the signature of the accused in the cheque. It is also not in dispute that the cheque is issued from an accused maintained by the accused. Therefore, the trial court and the appellate court were fully right in holding that the statutory presumption under Sec.139 has operated in favour of the complainant. Thereafter, it was the onus on the part of the complainant to disprove the cheque or the existence of the legally recoverable debt or liability, at least on the basis of preponderance of probability that could be done either by picking holes in the prosecution evidence by effectively mounting challenge at the time of cross examination of the complainant's witnesses or if such evidence is Crl.R.P.1677/16 - : 6 :- not sufficient, then it is for the accused to strategically think in terms of independent defence evidence. Certainly the accused has the golden right to remain silent as engrafted in clause 3 of Art.20 of the Constitution of India. But the reverse onus clause engrafted in Sec. 139 would place the onus on the accused once the statutory presumption under Sec.139 and Sec. 118 (a) of the Negotiable Instruments Act is drawn. In the instant case, the abovesaid findings made by both the courts below that the accused has not been able to discharge his onus after the complainant could get statutory presumption, cannot be said to be vitiated by any gross perversity or unreasonableness. In the light of these aspects, the findings rendered by both the courts below regarding the conviction of the petitioner cannot be said to be illegal or perverse. 8. There have been no serious objections regarding the findings made by both the courts below regarding the compliance of the various statutory formalities before the initiation of the complaint in this case. No relevant or crucial evidentiary aspects are seen shut out by both the courts below. Merely because another view is possible, is no ground for justifying the revisional court to interfere with the considered findings made concurrently by both the courts below. Therefore, this Court is constrained to take the view that the revision petitioner accused has not been able to successfully canvass before this Court that the impugned findings and conviction rendered concurrently by both the courts below Crl.R.P.1677/16 - : 7 :- are liable for interference at the hands of this revisional court. 9. As regards the question of sentence, it is to be seen that the cheque amount in this case is Rs.1 lakh and both the courts below have only imposed sentence imprisonment till rising of the court and to pay Rs. 1 lakh as compensation to the complainant and in default thereof, to undergo 3 months' simple imprisonment, etc. The said sentence cannot be said to be grossly excessive or disproportionate. Therefore, this Court finds that there are no cogent grounds to interfere with the sentence, by exercising powers in revision. 10. Faced with this situation, Sri.C.S.Manu, learned counsel appearing for the revision petitioner accused submits that in case this Court is so inclined to confirm the impugned conviction and sentence imposed in this case, then this Court may grant at least 6 months' time to pay the compensation amount of Rs.1 lakh. Sri.Sunny Mathew learned counsel appearing for the 2[nd] respondent complainant would submit that this Court may not grant more than 4 months since the dishonoured cheque in question was issued as early as on 3.4.2014 and not even interest has been awarded by both the courts below on the compensation, despite consisted rulings of the Apex Court regarding grant of interest at least @ 9% p.a., etc. Sri.C.S.Manu, learned counsel appearing for the revision petitioner submits that the petitioner has deposited an amount of Rs. 50,000/- before the trial court in compliance Crl.R.P.1677/16 - : 8 :- with the this Court's interim order dated 6.1.2017 passed in this case. In the light of these submissions the following orders and directions are issued: - (i) The impugned conviction and sentence imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act will stand confirmed. - (ii) In case the petitioner has deposited Rs. 50,000/- before the trial court in compliance with the interim order passed by this Court, then the trial court will ensure that the said amount is immediately released to the complainant on an application in that filed by that party. The petitioner is given 4 months time from 15.4.2017 to pay the balance compensation amount. - (iii) The revision petitioner will be at liberty to pay the amount directly the complainant. On payment of the amount, the complainant will issue receipts to the accused so that the accused can produce the same before the trial court to satisfy the said court about payment of the amount. - (iv) The petitioner shall personally appear before the trial court at 11 a.m. on any day on or before 19.8.2017 to receive the sentence of imprisonment till rising of the court and to satisfy the trial court about the payment of the total compensation amount of Rs.1 lakh. - (v) On default of payment of the said amount as directed above, then the petitioner will have to undergo to simple imprisonment for 3 months as ordered by the courts below. - (vi) Until 19.8.2017 coercive steps taken against the petitioner in pursuance of the execution of the impugned warrant will stand deferred. - (vii) On default of the petitioner either to appear before as directed above or in paying the abovesaid amount as directed above, the trial court will be at liberty to proceed against the petitioner, in accordance with law. With these observations and directions, the aforecaptioned Revision Petition stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.R.P.1677/16 - : 9 :-