Lenin v. Roshan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** **Crl.Rev.Pet.No. 1169 of 2017** **------------------------------------------** ## **AGAINST THE JUDGMENT IN CRL.A.NO. 94/2014, OF I ADDITIONAL SESSIONS COURT, THRISSUR** **AGAINST THE JUDGMENT IN C.C.NO. 641/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD** **------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **----------------------------------------------------------------------------** **LENIN, AGED 49 YEARS, S/O.APPUNNI, ARANGATH HOUSE, THRITHALLUR, VADANAPPILLY VILLAGE & DESOM, CHAVAKKAD TALUK, THRISSUR.** **BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SMT.RASHIDA CHEMMENAMPALLY** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE :** **---------------------------------------------------------------------------------------** **1. ROSHAN, S/O.BHASKARAN, MULLAPPILLY VEETTIL, PALLURUTHY DESOM, ERNAKULAM DISTRICT (NOW RESIDING AT CHANASSERY VEETTIL, ENGADIYUR VILLAGE) REP. BY POWER OF ATTORNEY HOLDER PRAMOD, AGED 45 YEARS, S/O.MANANGATH KRISHNANKUTTY, EDASSERY DESOM, THALIKULAM VILLAGE, CHAVAKKAD TALUK, THRISSUR-680 569.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADV. SRI. BIJI. S. CHERIAN R2 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Msd.** **Crl.Rev.Pet.No. 1169 of 2017** **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A: TRUE COPY OF MEDICAL REPORT DATED 05.12.2016 ISSUED BY CHRISTIAN MEDICAL COLLEGE, VELLOOR. ANNEXURE B: TRUE COPY OF MEDICAL REPORT DATED 09.01.2017 ISSUED BY CHRISTIAN MEDICAL COLLEGE, VELLOOR.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **ALEXANDER THOMAS, J. -------------------------------Crl.R.P. No.1169 of 2017 ----------------------------------** Dated this the 9[th] day of October, 2017 ## **O R D E R** The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act, in C.C.No.641 of 2008 on the file of the Judicial First Class Magistrate Court, Chavakkad, instituted on the basis of a complaint filed by the 1[st] respondent herein. 2. Ext.P1 is the dishonoured cheque dated 10.10.2007 is for Rs.5 lakhs and Ext.P2 is the dishonoured cheque dated 10.10. 2007 is for Rs.2 lakhs and thus totaling to Rs.7 lakhs. The trial court as per the impugned judgment rendered on 26.02.2014 has convicted the petitioner for the aforesaid offence and has sentenced to undergo simple imprisonment for six months and to pay Rs.10,40,000/- as compensation to the complainant under Section 357(3) of the Code of Criminal Procedure, and in default thereof to undergo simple imprisonment for a further period of three months. Aggrieved thereby the petitioner had preferred Crl.Appeal No.94 of 2014 before the appellate Sessions Court concerned. The appellate Sessions Court (Court of First Additional Session Judge, Thrissur) as per the impugned judgment rendered on 7.9.2016 has affirmed the conviction but has reduced the substantive sentence from six months simple ## **Crl.R.P. No.1169 of 2017** ## **-: 2 :-** imprisonment to three months simple imprisonment and has confirmed the compensation amount of Rs.10.40 lakhs with the default sentence clause of three months simple imprisonment etc. It is challenging these verdicts of both the courts below, the petitioner has preferred the instant revision petition by invoking the remedies under Sections 397 and 401 of the Cr.P.C. 3. Earlier notice was issued in this revision petition, which was duly served on R1. Sri.Biji S.Cherian, learned Advocate has taken notice for the first respondent/complainant and Sri.Jestin Mathew, learned Public Prosecutor has taken notice for second respondent State. 4. Heard 5. The brief of the case of the complainant is to the effect that he had advanced a total amount of Rs.7 lakhs as advance sale consideration to the petitioner, in pursuance to Ext.P11 agreement for sale dated 29.03.2007 and that thereafter the accused had not taken active steps for finalization of the sale deed and in the settlement talks, the accused had reached the understanding with the complainant that he would refund back the above said advance sale deed portion of Rs.7 lakhs and in pursuance of that understanding, the accused had issued Exts.P1 and P2 cheques dated 10.10.2007 for Rs.5 lakhs and Rs.2 lakhs respectively and thus totaling to Rs.7 lakhs, which has presented ## **Crl.R.P. No.1169 of 2017** ## **-: 3 :-** resulted in dishonour. The statutory demand notice under Section 138 (b) of the Negotiable Instruments Act was duly issued by the complainant, to which the accused had issued Ext.P10 reply notice stating that denying the liability. Since the amount was not paid, the complainant after adhering to the requisite statutory formalities in that regard and institute the above complaint. 6. During the trial, the complainant has examined PW1 to PW3 and has marked Exts.P1 to P12 documents. The defence has marked Exts.D1 to D6 documents. Exts.X1 and X1(a) are the court marked exhibits. The defence has not adduced any oral evidence etc. From the materials on records it is seen that both the courts below have on the basis of adequate appreciation of factual evidence has come to the conclusion that the two dishonored cheques in question for a total amount of Rs.7lakhs was issued by the accused in favour of the complainant in discharge of a liability for the said amount that arose in the above said proposed immovable property sale transaction. It is on the basis of meticulous and proper appreciation of evidence the courts below come to the conclusion that the petitioner is liable to be convicted for the above said offence punishable under Section 138 of the Negotiable Instruments Act. The defence put up by the accused have also been considered and repelled by both the courts below. The said ## **Crl.R.P. No.1169 of 2017** ## **-: 4 :-** concurrent findings arrived at by the courts below cannot be said to be vitiated by any perversity or illegality as regards the question of conviction. Therefore, this Court is not in a position to interfere with the said findings of facts regarding the conviction of the petitioner. As regards the sentence, this Court is of the considered opinion that the courts below have imposed excessive substantive sentence imposed on the petitioner. 7. Going by the legal principles laid down by the Apex Court as in **Damodar S.Prabhu v. Sayed Babalal reported** in **AIR 2010 SC 1907** and **Kaushalya Devi Massand v. Roopkishore** in **AIR 2011 SC 2566** that it is now well established that the offence of dishonour of cheques covered under Section 138 of the Negotiable Instruments Act is essentially a civil wrong, which has been criminal overtones by legislative amendments in the Negotiable Instruments Act and that ordinarily, the sentence of fine which is to be disbursed as compensation to the complainant would be sufficient to meet the ends of justice and that adequate default sentence clause would be awarded to ensure that the accused pays the fine to the said compensation amount. Substantive sentence could also be appropriately imposed in an appropriate manner as imprisonment till rising of the court. But it is not as if the substantial sentence of imprisonment can never be imposed ## **Crl.R.P. No.1169 of 2017** ## **-: 5 :-** for offence punishable under Section 138 of the Negotiable Instrument Act, if there are exceptional circumstances warranting it on consideration of the facts and circumstances of this case, this Court is convinced that the transaction between the parties was essentially in the nature of a proposed sale transaction of immovable property and the ends of justice would be sufficiently met by imposing substantial sentence of imprisonment till rising of Court with adequate fine to be disbursed as compensation. 8. The petitioner has filed an affidavit along with Annexures A and B which are the medical records issued by the Christian Medical College, Velloor, Tamil Nadu. It is averred that petitioner's daughter has been suffering from Type-II Autoimmune Hepatitis and has been undergoing specialized treatment at the Christian Medical College Hospital, Velloor and that he had to frequently take his daughter to Velloor for treatment and had incurred huge monitory expenses for her treatment. Annexure-A and B produced along with this memorandum of revision petition are the medical reports in that regard issued by the Hepatology Department of the Christian Medical College Velloor regarding the ailment and treatment of the petitioner's daughter Ardra A.L. 9. On this basis, the learned counsel appearing for the ## **Crl.R.P. No.1169 of 2017** ## **-: 6 :-** petitioner would strongly urged before this Court that this Court may exercise its discretion conferred on a revisional court and may appropriately reduce the fine amount. Having regard to the above said facts regarding the treatment of the petitioner, this Court is convinced that the said averments made by the petitioner are true and genuine and that the case requires a compassionate approach. The civil suit filed by the complainant had already been decreed and the petitioner's property has been attached. It is further stated by the petitioner that he has not filed any appeal to challenge the said decree. So the complainant can claim any balance amount over and above the fine/compensation amount in the civil proceedings. 10. Therefore, the awarding of a high compensation amount of Rs.10,40,000/- in the complaint over and above the cheque amount of Rs.7 lakhs appears in the facts and circumstances of this case to be unwarranted. At any rate, this Court is of the considered opinion that discretion should be exercised in order to ensure that a compassionate approach is made out to the petitioner in awarding of the compensation amount. Accordingly it is ordered that in supersession of the orders passed by the courts below that the compensation amount of Rs.10,40,000/- would stand reduced to Rs.7 lakhs, which is the total amounts covered by two cheques in question. The petitioner would also ## **Crl.R.P. No.1169 of 2017** ## **-: 7 :-** submit that in view of his financial problems he may be given eight months time to pay the aforesaid amount. Having regard to the facts and circumstances of this case, this Court is inclined to grant six months time to the petitioner to remit the compensation amount. Further, the petitioner would submit that he may be given liberty to enter into out of court settlement negotiations with the complainant and that in case the complainant is agreeable to receive a lesser amount as compensation, then the payment of any such amount as agreed as compensation may be treated as payment of compensation amount in full and final settlement of all issues between the parties. 11. Accordingly the following directions and orders are passed: - _i. The impugned conviction, imposed on the petitioner for the offence punishable under Section 138 of NI Act will stand confirmed._ - _ii. The substantive sentence of simple imprisonment for three month is reduced to simple imprisonment till rising of the court._ - _iii.In supersession of the orders passed by the courts below, it is ordered that the compensation amount will stand reduced to Rs.7,00,000/- (Rupees Seven lakhs only). However, the liberty is given to the petitioner to enter into out of court settlements talks with the complainant and in case if they arrive at any settlement in the course of the next six months, and the complainant agrees to accept any lesser amount as compensation in full and final settlement of all liabilities in this case, the payment of such lesser amount to the satisfaction of the complainant should be treated as due compensation amount in this case._ - _iv.The petitioner is given liberty to make the payments directly to the complainant. On receipt of such payments the complainant should issue necessary receipts of such payments in order to enable the_ ## **Crl.R.P. No.1169 of 2017** ## **-: 8 :-** _accused to produce the same before the trial court to satisfy the said court regarding such payments._ - _v. In case, any out of court settlements between the parties turn out to be successful, and the complainant agrees to receive an amount lesser than Rs.7 lakhs as compensation, then the complainant will file a memo through his counsel before the trial court stating about such settlement and also about the receipt of the compensation amounts from the accused. If the complainant files a memo through his counsel about any such successful settlement for finalizing any lesser amount as compensation and receipt of any such agreed lesser amount as compensation etc., then the payment of any such lesser compensation amount agreed between the parties should be treated by the trial court as one in full and final settlement of all liabilities in this case. If on the other hand, there is no settlement, the petitioner should produce the materials before the trial court to satisfy the said court about the payment of the above said amount of Rs.7 lakhs to the complainant._ - _vi.The petitioner will personally appear before the trial court at 11.A.M. on any day on or before 21.04.2018 to suffer the sentence of imprisonment till the rising of the court and to satisfy the trial court about payment of the compensation amount as directed herein above. On default of the petitioner to pay the said compensation amount, he will have to suffer simple imprisonment for a period of three months._ - _vii.Until 21.04.2018, all coercive steps taken against the petitioner in pursuance of execution of the impugned sentence of this case will stand deferred._ - _viii.The Registry will forward a copy of this order to the trial court for necessary information._ With these observations and directions, the Crl.R.P. stands finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//