M. Nazurudheen v. Anitha Lal & State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 Crl.Rev.Pet.No. 1707 of 2010() -----------------------------CRA.231/2009 of ADDL.SESSIONS COURT-I, MAVELIKKARA CC.628/2006 of JUDL.MAGISTRATE OF FIRST CLASS, CHENGANNUR .................... ## REVN. PETITIONER: 2ND APPELLANT/2ND ACCUSED: ----------------------------------------------- M.NAZURUDHEEN, S/O.MOIDEEN KUNJU, MANAGING DIRECTOR, M/S.APPLE VALLEY TEA INDUSTRIES, NEEMAVIL, KOLLAM-691 601. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. MRS.ANITHA LAL, SARASAWTHY NIVA, POOVATHOOR P.O., KOIPURAM-REPRESENTED BY HER POWER OF ATTORNEY HOLDER RADHAKRISHNA PILLAI, KRISHNA VILASOM, POOVATHOOR P.O., PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.R.P. No. 1707 of 2010 ----------------------------------------** Dated 2[nd] Day of June, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner. He is challenging his conviction and sentence in this revision. 2. The case against the revision petitioner-2[nd] accused is that he is the Managing Director of a company, namely, M/s. Apple Valley Tea Industries. In the complaint, the said company is the first accused and the revision petitioner is the 2[nd] accused. According to the complainant. The revision petitioner, in discharge of a legally enforceable debt, due to the complainant, issued a cheque for an amount of Rs.1,84,777/- to the complainant and when the said cheque presented for encashment, the same was dishonoured for the reason that the fund in the account maintained by the accused was insufficient. According to the complainant, he had caused to send a lawyer notice to CRL.R.P.1707/10 ## **-:2:-** the revision petitioner informing him the dishonour of the cheque and also demanding to pay off the amount. But no amount was paid. With the above allegation, by filing a complaint, the complainant approached the Judicial First Class Magistrate, Chengannur, upon which cognizance was taken for the offence under section 138 of the N.I.Act and instituted C.C.No.628 of 2006. During trial, PW1 was examined for the complainant and also produced Exts.P1 to P6. The trial court, after considering the evidence and materials on record, found that the complainant has established his case and he is entitled to get the presumption under sections 118(a) and 139 of the N.I.Act, and it is for the accused to rebut the presumption Thus, the trial court found that the revision petitioner is guilty of the charge levelled against him, accordingly, he is convicted under section 138 of the N.I Act and he is sentenced to undergo simple imprisonment for 6 months and also directed to pay a compensation of Rs.1,84,777/- to the complainant under section 357(3) Cr.P.C. Aggrieved by the above verdict CRL.R.P.1707/10 **-:3:-** of the trial court, though the revision petitioner had preferred an appeal, by judgment dated 8.2.2010 in Crl.A. No.231/2009, the court of Additional Sessions Judge-1, Mavelikara, dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner. It is the above conviction and sentence challenged in this revision. 3. I have heard Sri N.Asok Kumar, learned counsel appearing for the revision petitioner, and also perused the judgments of the courts below. 4. On a consideration of the arguments of the learned counsel for revision petitioner and on perusal of the judgments of the courts below, it can be seen that the revision petitioner-accused has admitted the execution and issuance of the cheque. It is also discernible from the facts and circumstances discussed by the courts below that there was frequent transactions between the complainant and the revision petitioner. Under the above factual scenario, especially, when the revision petitioner-accused admitted the execution and issuance of the cheque, though not as claimed CRL.R.P.1707/10 **-:4:-** by the complainant, it is for the accused to make out his case and to establish that there was no transaction as claimed by the complainant. Thus, only on establishing that the revision petitioner had not issued the cheque, after its execution connected with the transaction claimed by the complainant in this case, it can be held that the accused had discharged his burden in rebutting the presumption available in favour of the complainant. In the absence of any evidence or materials, especially, when the revision petitioner admitted the execution and issuance of the cheque, I find no reason to interfere with the findings arrived on by the trial court as well as the lower appellate court which finding is purely based upon the facts and evidence established by the complainant. Therefore, there is no merit in this revision. 5. The learned counsel for the revision petitioner submitted that some time may be granted to make the payment and also submitted that in the matter of sentence, leniency may be shown in favour of the revision petitioner. 6. Having regard to the facts and circumstances CRL.R.P.1707/10 ## **-:5:-** involved in the case, I am of the view that the said submission of the learned counsel for the revision petitioner can be considered favourably, but at the same time, this court cannot ignore certain material facts and circumstances involved in the case. Admittedly, the cheque in question is dated 30.6.2006 for an amount of Rs.1,84,777/- and as per the records, the said amount is with the revision petitioner for the last 4 years. The trial court on convicting the revision petitioner, imposed a sentence of six months simple imprisonment and ordered compensation which is equal to the cheque amount. 7. The Apex Court, in a recent decision in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the above factual and legal position, I am of the view that the substantial sentence of imprisonment can be reduced to imprisonment till the rising of the court and the complainant can be assured some compensatory CRL.R.P.1707/10 **-:6:-** amount by imposing the sentence of fine against the revision petitioner and also fixing default sentence. In the result, this Crl. Revision Petition is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and he is also sentenced to pay a fine of Rs.2,15,000/- (Rs.Two lakhs fifteen thousand only) and , in default, to undergo simple imprisonment for a period of 6 months and, on realisation of the fine amount, a sum of Rs.2,10,000/- (Rs.Two lakhs ten thousand only) shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner-2[nd] accused is directed to appear before the trial court on **2[nd] September, 2010** to receive the sentence. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure the presence of the CRL.R.P.1707/10 ## **-:7:-** revision petitioner and to execute the sentence including realisation of the fine amount. **V.K.MOHANAN,** JUDGE. kvm/-