M. Mehaboob v. K. Chandrasekharan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939** **Crl.Rev.Pet.No. 1329 of 2017 ()** **-------------------------------CRA 59/2017 of ADDL. DISTRICT AND SESSION COURT - IV, KOZHIKODE CC.1831/2015 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I. ACT CASES) KOZHILODE** ## **PETITIONER/APPELLANT/ACCUSED : -----------------------------** **M. MEHABOOB, AGED 57 YEARS, S/O. MANU, NEELATT HOUSE, CHANDA, PETTA, FEROKE, PIN-673631.** **BY ADVS.SRI.AVM.SALAHUDIN SMT.A.D.DIVYA SMT.EMIL STANLEY** **RESPONDENT(S)/RESPONDENT/COMPLAINANT AND STATE : ------------------------------------------------** **1. K. CHANDRASEKHARAN, AGED 66 YEARS, S/O. KUNHARU, KANANGOTT HOUSE, PERUMUKHAM, FEROKE-673631.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.1329 Of 2017 --------------------------------- Dated this the 8th day of November, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.1831/2015 on the file of the Special Judicial First Class Magistrate Court (N.I. Act Cases), Kozhikode, instituted on the basis of a complaint filed by R-1 herein. Ext.P-1 dishonoured cheque dated 16.7.2015 is for Rs.5 lakhs. The trial court as per the impugned judgment rendered on 25.1.2017 had convicted the petitioner for the above said offence and sentenced him to pay a fine of Rs.5 lakhs and in default thereof to undergo simple imprisonment for a period of 5 months and the fine amount so realised shall be ordered to be paid to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Crl.A.No.59/2017 before the Sessions Court, Kozhikode. The appellate Sessions Court concerned (Court of Additional Sessions Judge-IV, Kozhikode), as per the impugned judgment dated 16.9.2017 had upheld the conviction and sentence and thereby dismissed the appeal. ::2:: Crl.R.P.No.1329 Of 2017 It is aggrieved by these verdicts, that the petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C. 2. Heard Sri.A.V.M.Salahuddeen, learned counsel appearing for the revision petitioner-accused and Sri.Saigi Jacob Palatty, learned counsel appearing for R-2 State. In the nature of the orders proposed to be passed in this petition, notice to R-1 will stand dispensed with. 3. The brief of the case of the complainant is to the effect that the complainant and accused were known to each other and the accused had borrowed a total sum of Rs.5.5 lakhs from the accused comprising of Rs.2 lakhs on 11.12.2014 and Rs.3.5 lakhs on 17.12.2014 and that the accused had returned Rs.50,000/- in May, 2015 and that the complainant thereafter in first week of July, 2015, demanded the balance outstanding amount of Rs.5 lakhs and in discharge of the said liability, the accused had executed and issued Ext.P-1 cheque dated 16.7.2015 for Rs.5 lakhs drawn from his account from State Bank of India, Kozhikode Bank Road Branch and payable in favour of the complainant and executed the cheque in the presence of the complainant. That the cheque when presented resulted in dishonour as per Exts.P-2 and P-3 bank memo and thereafter the ::3:: Crl.R.P.No.1329 Of 2017 complainant issued Ext.P-4 statutory demand notice dated 24.7.2015 under Sec.138 proviso (b) of the N.I.Act, calling for the petitioneraccused to pay off the amount covered by the cheque within a period of 15 days from the date of receipt of the notice. The said notice was duly sent as per Ext.P-5 postal receipt and the same was returned as unclaimed. That thereupon, the complainant, after following the requisite procedural formalities, has instituted the instant complaint, which resulted in the conduct of the trial. During trial, the complainant was examined as PW-1 and marked Exts.P-1 to P-9 documents. The accused has given oral evidence as DW-1 but has not adduced any documents. PW-1 has deposed broadly in tune with the contents of his complaint. That the complainant had given an amount of Rs.5.5 lakhs to the accused on his request comprising of Rs.2 lakhs on 11.12.2014 and Rs.3.5 lakhs on 17.12.2014 and the accused had later repaid Rs.50,000/- in May 2015 and on 1st week of July, 2015, when the complainant had demanded the accused to repay the balance outstanding amount of Rs.5 lakhs in the talks held between the parties and during that time, the accused has issued Ext.P-1 cheque dated 16.7.2015 for Rs.5 lakhs by executing the same in the presence of the complainant, etc. That the cheque when presented resulted in ::4:: Crl.R.P.No.1329 Of 2017 dishonour. The main defence took up by the accused was to the effect that there are no transactions between the complainant and the accused and that the accused does not even know the complainant, etc. That Ext.P-1 cheque was lost by him and the said cheque has been misused by the complainant in instituting the present complaint, etc. Both the courts below have noted that financial capacity of the complainant to lent such a huge amount of Rs.5 lakhs is not disputed by the accused. Moreover, PW-1 has stated that he had withdrawn the above said amount from the bank. Ext.P-8 is the passbook of the complainant's Savings Bank account maintained with the Feroke Service Co-operative Bank. As per Ext.P-8, the complainant had withdrawn an amount of Rs.2 lakhs and Ext.P-9 is the Cash Savings Scheme of passbook issued by the Calicut University Employees Housing Co-operative Society to the complainant, which shows that the sala of that scheme is Rs.5 lakhs. No question whatsoever was put to the complainant regarding Ext.P-8 and P-9 documents during cross-examination. The complainant is a retired employee of the Calicut University. In view of these aspects, both the courts below were satisfied that the version given by PW-1 regarding the transactions and about his source of funds to advance the amount of Rs.5 lakhs to the accused, etc. Ext.P-7 is the reply filed along ::5:: Crl.R.P.No.1329 Of 2017 with a copy of the petition filed by the accused against the complainant before the Deputy Superintendent of Police, Crime Branch C.I.D, Economic Offence Wing-III, Kozhikode, making certain allegations against the complainant and it is alleged by the accused therein that the complainant is a money lender and the accused borrowed Rs.25,000/from the complainant in October, 2012 for the marriage of the accused's son and then the accused issued 2 blank signed cheques drawn from his account with State Bank of India as security and even though the accused had repaid the said amount in the year 2012 itself, those cheques were not returned back by the complainant, etc. It is further noted by the trial court that when DW-1 was confronted with Ext.P-7 filed by him, DW-1's explanation was that the above said allegations in Ext.P-7 are false and the explanation offered by DW-1 in cross-examination is that the above said allegations were incorporated in Ext.P-7 to strengthen the case against the complainant. Therefore, Ext.P-7 would clearly prove the case set up by the accused that he had no acquaintance or relationship whatsoever with the complainant is absolutely false and further that the accused has even admitted that the allegations made by the complainant in Ext.P-7 are false and the allegations were made to strengthen the case against the complainant. ::6:: Crl.R.P.No.1329 Of 2017 In the light of these aspects, both the courts below have found that the stand taken by the accused is not believable and trustworthy and that the accused has not been able to establish the veracity of the defence pleas. The courts below have found that PW-1's evidence is broadly believable and credible whereas the defence plea is not acceptable. It is in the light of these aspects, that the courts below have come to the conclusion that the accused is liable to be convicted for the offence under Sec.138 of the N.I. Act. These findings of facts cannot be said to be perverse or unreasonable and therefore, this Court is of the view that this Court will not be justified to interfere in a matter like this by taking recourse to the revisional powers conferred on this Court. As regards the sentence, the trial court has sentenced the accused to pay a fine of Rs.5 lakhs and in default thereof to undergo simple imprisonment for a period of 5 months. The sentence cannot be said to be excessive or arbitrary keeping the fact that the cheque amount is Rs.5 lakhs. The Apex Court in the decision in R.Vijayan v. Baby & anr., reported in (2012) 1 SCC 260, has held that criminal court should award interest on the compensation amount @ 9% p.a. on the cheque amount from the date of cheque upto the date of actual realisation apart from the cheque amount. In these circumstances, the sentence imposed by the courts ::7:: Crl.R.P.No.1329 Of 2017 below in any manner be termed as illegal or disproportionate. The fine amount so realised has been directed to be paid as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C. 4. Sri.A.V.M.Salahuddeen, learned counsel appearing for the revision petitioner-accused, submits that in case this Court is so inclined to confirm the conviction and sentence, then one year's time may be granted to the petitioner to make payment of the fine/compensation amount of Rs.5 lakhs before the trial court. Ext.P-1 cheque was issued as early as on 16.7.2015. Having regard to the facts and circumstances in this case, it will not be proper for this Court to grant more than 8 months' time to pay the fine amount. Accordingly the petitioner is given 8 months' time to remit the fine/compensation amount of Rs.5 lakhs before the trial court. The petitioner shall appear before the trial court at 11:00 a.m. on any day on or before 21.7.2018 to remit the fine amount of Rs.5 lakhs. Needless to say, on default of the petitioner to pay the fine/compensation amount, he will have to undergo simple imprisonment for a period of 5 months. The fine amount so realised shall be forthwith released by the trial court to the complainant after issuing notice of intimation to that party in that regard. Until 21.7.2018, all further coercive proceedings taken against ::8:: Crl.R.P.No.1329 Of 2017 the petitioner in execution of the impugned sentence will stand deferred. On default of the petitioner either to appear before the trial court on 21.7.2018 or to make payment of fine as directed above, then the trial court will be at liberty to proceed against the petitioner in accordance with law. Registry will forward a copy of this order to the trial court as well as R-1 for necessary information. With these observations and directions, the Crl.R.P stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.