Majesh v. Sree Gokulam Chit and Finance Company (P) Ltd and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** **Crl.Rev.Pet.No.1172 OF 2019** **AGAINST THE JUDGMENT IN CRA 103/2017 DATED 02-08-2019 OF ADDITIONAL SESSIONS COURT II (SPECIAL COURT), KOTTAYAM** **AGAINST THE JUDGMENT IN ST 31/2015 DATED 06-05-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, ETTUMANUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MAJESH, AGED 37 YEARS S/O.MOHANAN, KOCHUVEETTIL HOUSE, AYIRANVELICKAL, NEENDOOR P.O., ONAMTHURUTHU VILLAGE, KOTTAYAM TALUK.** **BY ADV. SRI.JOSSY KURIAN** ## **RESPONDENTS/COMPLAINANT/STATE:** **1 SREE GOKULAM CHIT AND FINANCE COMPANY (P) LTD., WHICH IT'S CENTRAL OFFICE AT NO.66, ARCOT ROAD, KODAMPAKKAM, CHENNAI, IS HAVING ITS DIVISIONAL OFFICE AT PRAKKATTU BUILDING, 1ST FLOOR, CENTRAL JUNCTION, KOTTAYAM-1, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.P.SHIBU, PIN686001.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.** ## **SRI C N PRABHAKARAN-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.11.2019, THE COURT ON 02.12.2019 PASSED THE FOLLOWING:** Crl.R.P.No.1172/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1172 of 2019 ----------------------------------------------Dated this the 2[nd] day of December, 2019 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.31/2015 on the file of the Court of the Judicial First Class Magistrate-II, Ettumanoor. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.2,23,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was realised, it shall be given to the complainant as compensation. Crl.R.P.No.1172/2019 3 3. The petitioner filed Crl.A.No.103/2017 before the Court of Session, Kottayam challenging the conviction entered against and the sentence imposed on him by the trial court. The appellate court confirmed the conviction as well as the sentence and dismissed the appeal. The concurrent findings of guilty, conviction and sentence made against the petitioner are challenged in this revision petition. 4. Heard learned counsel for the petitioner. 5. The case of the complainant is as follows: The complainant is a company conducting chitty business. Mr.V.K.Subramanyan was a subscriber to the chitty. The accused was the surety of Subramanyan. The chitty amount was paid to Subramanyan. He made default in repayment of the chitty amount. An amount of Rs.2,23,600/- was due from him to the company as on 16.04.2013. In discharge of that liability, the accused executed a cheque dated 16.04.2013 for the aforesaid amount and issued it to the complainant. 6. During the trial of the case, the power of attorney holder the complainant company was examined as PW1 and Crl.R.P.No.1172/2019 4 Exts.P1 to P11 documents were marked. DW1 and DW2 were examined and Ext.D1 was marked on the side of the accused. 7. There is no dispute with regard to the fact that Subramanyan had subscribed to the chitty conducted by the complainant company. He had received the chitty amount from the company. The accused had no case that Subramanyan repaid the entire amount due to the complainant company in the chitty transaction. There is also no dispute with regard to the fact that the accused was a guarantor in the chitty transaction. 8. The signature in the cheque was not disputed by the accused. His plea was that he had given a signed blank cheque as security at the time of payment of the chitty amount to Subramanyan and that the complainant company has misused it and filed the case. 9. After appreciating the evidence adduced by the complainant as well as the accused, the trial court and also the appellate court came to the finding that the accused had executed the cheque and issued it to the complainant company in discharge of the amount which was due from Subramanyan to Crl.R.P.No.1172/2019 5 the company. I have perused the judgments of the courts below. I find no perversity or impropriety in the appreciation of evidence made by the courts below. 10. The petitioner has got a contention that PW1 had no direct knowledge regarding the transaction in which the cheque was issued by the accused. The accused has no case that there was no chitty transaction or that Subramanyan had not subscribed to the chitty conducted by the complainant company. The accused has also got no case that he was not a guarantor in the chitty transaction. Therefore, the fact that, PW1 had no direct knowledge regarding the chitty transaction, is of no consequence. At the same time, it is to be noted that the cheque is dated 16.04.2013 and PW1 was under the employment of the complainant company at that time. 11. Even if it is accepted that the petitioner/accused had given only a signed blank cheque to the complainant company as security for the amount to be repaid by Subramanyan, it does not, in any way, help the accused. Even in such a case, when the amount became due from the subscriber of the chitty and when it Crl.R.P.No.1172/2019 6 was not paid, the complainant had the authority to fill up the cheque for the amount due from the accused. 12. A person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 of the Act would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt (See **Bir Singh v.** Crl.R.P.No.1172/2019 7 ## **Mukesh Kumar : AIR 2019 SC 2446** ). 13. In the aforesaid circumstances, there is no sufficient ground to interfere with the conviction of the petitioner, for the offence punishable under Section 138 of the Act, in exercise of the revisional jurisdiction of this Court. 14. The trial court had imposed a sentence of simple imprisonment for a period of three months and also fine on the accused. The appellate court, without any modification of sentence, dismissed the appeal. Considering the facts and circumstances of the case and the nature of the offence, I find that it is not necessary to impose any sentence of imprisonment on the accused. The sentence imposed on him is liable to be modified. 15. In the result, the revision petition is allowed in part. Conviction of the petitioner/accused for the offence under Section 138 of the Act is confirmed. The sentence of simple imprisonment for a period of three months imposed on the petitioner/accused is set aside. The sentence of fine imposed on the petitioner/accused and the default sentence of imprisonment Crl.R.P.No.1172/2019 8 imposed on him by the trial court, which stand confirmed by the appellate court, are confirmed. If the fine amount is realised, it shall be given to the complainant company as compensation. The petitioner/accused is granted a period of three months time from today to deposit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr