Manoj George v. State of Kerala and Sree Gokulam Chit and Finance Company Private Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938** **Crl.Rev.Pet.No. 26 of 2017** **---------------------------------------** **AGAINST THE JUDGMENT IN ST 67/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THODUPUZHA** **AGAINST THE JUDGMENT IN CRL.A.NO. 70/2015 OF ADDITIONAL SESSIONS COURT-IV, THODUPUZHA** **-------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **---------------------------------------------------------------------------** **MANOJ GEORGE, S/O. GEORGE, AGED 40 YEARS, VELLAYAMKUDY KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK.** **BY ADVS. SRI.RENJITH B.MARAR SMT.RESHMI JACOB SRI.P.B.SUNEER SRI.T.U.SUJITH KUMAR SRI.P.S.SYAMKUTTAN** ## **RESPONDENT(S)/STATE & COMPLAINANT :** **----------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.** **2. SREE GOKULAM CHIT AND FINANCE COMPANY PRIVATE LIMITED, ARCOT ROAD, KODAMBAKKAM, CHENNAI, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER JOMY M.C, S/O. CHACKO, SENIOR BUSINESS MANAGER, THODUPUZHA BRANCH, THODUPUZHA P.O.** - **R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY R2 BY ADV. SRI.K.SIVAKUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## ALEXANDER THOMAS, J. ================== ## Crl.R.P.No. 26 of 2017 ================== Dated this the 28[th] day of February, 2017 O R D E R The petitioner is the accused for offence under Sec.138 of the Negotiable Instruments Act in Summary Trial Case, S.T.No. 67/2013 on the file of the Judicial First Class Magistrate's Court-II, Thodupuzha, instituted on the basis of the complaint filed by the 2[nd] respondent herein. The trial court by the impugned judgment dated 17.3.2015 had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for a period of 4 months and to pay fine of Rs.61,350/- to the complainant under Sec. 357(1) of the Cr.P.C. and in default thereof, the accused was sentenced to undergo simple imprisonment for a further period of 2 months. Aggrieved thereby the petitioner had preferred Criminal Appeal No.70/2015 before the appellate Sessions Court concerned. The appellate court (the Court of Addl. Sessions Judge-IV, Thodupuzha) as per the impugned judgment rendered on 26.2.2016 had confirmed the conviction and has Crl.R.P.26/17 - : 2 :- modified the substantive sentence by reducing the same to imprisonment till rising of the court, but has confirmed the fine amount. Challenging the abovesaid judgments of both the courts below, the petitioner has preferred the instant revision petition. 2. The gist of the prosecution case is that the accused was a subscriber of a chit transaction of Rs.1 lakh with the complainant company and the same prized for Rs.74,629/-. The revision petitioner had defaulted payments and hence notice was issued by the complainant company, to which the accused had responded by going to the office of the complainant and had issued Ext.P-8 cheque for Rs.61,350/- dated 8.3.2012 drawn from the account maintained by him, in favour of the complainant company, towards the arrears in the chit transaction. The said cheque on presentation was rejected for want of sufficient funds, to which the complainant had issued Ext.P-11 statutory notice dated 19.4.2012 demanding payment. The accused had issued a reply denying the liability for the amount of Rs.61,350/- and admitted only liability of Rs.45,000/-. 3. The power of attorney holder of the complainant company was examined as P.W-1 and deputy manager of the Crl.R.P.26/17 - : 3 :- Kattappana branch of the complainant company, where transaction had been taken place, was examined as P.W.2, and Exts.P-1 to P-12 documents were marked. The defence had not examined any witnesses, but had marked Exts.D-1 to D-9 through P.W-2. The chit transaction of the accused with the complainant company is not seriously disputed in this case as the accused himself has admitted a liability of Rs.45,000/-. Both the prosecution witnesses, P.W.1 and P.W-2, have deposed that the accused had prized the chitty for Rs.74,629/-. Exts.P-3, P-5 and P-6 are the promissory notes executed by the accused, debt acknowledgment and the guarantee agreement respectively produced in this case, which are all bearing date 10.12.2008, that is the date when he received the prized amount. P.W-2 Deputy Manager of the branch, where transaction had taken place, has clearly deposed that the accused had defaulted the payment and Ext.P-4 is the copy of the ledger extract showing the accounts, which would prove that the accused has defaulted payment. P.W-2 has also deposed that because of the default, the complainant company has issued Ext.P-7 notice, which was received by the accused, to which he issued Ext.D-2 reply. Both P.W-1 and P.W-2 have stated that upon receiving Ext.P-7 notice, the accused Crl.R.P.26/17 - : 4 :- had issued Ext.P-8 cheque dated 8.3.2012 for an amount of Rs.61,350/-, which resulted in the instant dishonour. 4. It is not seriously in dispute that the cheque in question has been drawn on the account maintained by the accused and the signature of the accused is also not disputed. Ext.P-4 ledger extract would clearly show that the said amount mentioned in the cheque was due to the complainant. Though the accused has challenged its correctness, he has no case that he has paid more instalments than what has been shown in the said ledger statement. Both the courts below found that presentation of the cheque, its dishonour and receipt of statutory notice are all admitted. The revision petitioner has not been able to raise any serious objections for the concurrent findings rendered by both the courts below that the complainant has complied with the requisite statutory formalities for the initiation of the complaint in question. On the issue as to whether the cheque has been executed and issued in respect of a legally enforceable debt or liability, the main defence projected by the accused during the cross examination of the prosecution witnesses is that the cheque in question was issued as security at the initial time of entering into the chit transaction. It has been held by the Crl.R.P.26/17 - : 5 :- Apex Court in rulings as in Don Ayengia v. State of Assam reported in (2016) 3 SCC 1 = 2016 (1) KLJ 547 (SC) that post dated cheques issued by way of security on condition that if the amount is not paid within the specified time, the cheques could be be presented and that dishonour of such cheques will attract an offence under Sec. 138 of the N.I. Act, etc. Accordingly, on an overall evaluation of the entire evidence on record, the trial court as well as the appellate court concurrently came to the conclusion that the complainant could prove the transaction as well as the execution of the cheque in question, whereas both the courts below have found that except making suggestions while examining the prosecution witnesses, the defence could not make out clinching material facts and circumstances so as to project a believable and probable defence version. Accordingly, it is in the light of these factual findings, that the courts below have come to the considered conclusion that the petitioner is liable for conviction for the abovesaid offence under Sec. 138 of the N.I. Act. The revision petitioner could not convince this Court that any illegality or impropriety has vitiated the impugned judgments. No crucial or relevant material aspects have been shut out by both the courts below. Therefore, this Court of the Crl.R.P.26/17 - : 6 :- firm view that the petitioner has not brought out any cogent grounds so as to invoke the revisional remedy to impugn the conviction in this case. Though the trial court has imposed substantive sentence of simple imprisonment for 4 months and to pay fine of Rs. 61,350/-, and in default thereof, to suffer 2 months' simple imprisonment, etc., the appellate court has modified the substantive sentence by reducing the same to imprisonment till rising of the court, but has confirmed the fine amount. Having regard to the fact that the petitioner has even fairly admitted a liability of Rs.45,000/- as against the liability of Rs. 61,350/- raised by the complainant, this Court is of the view that the ends of justice will be met by sentencing the petitioner only to pay the fine amount of Rs.61,350/-, which is the cheque amount in question. Accordingly the following orders and directions are issued: - (i) The impugned conviction imposed on the petitioner under Sec.138 of the Negotiable Instruments Act as per the impugned judgments of both the courts below will stand confirmed. - (ii) The modified sentence imposed on the petitioner to suffer imprisonment till rising of the court is set aside. - (iii) The petitioner is sentenced to pay fine of Rs. 61,350/- and in default thereof, he will have to suffer simple imprisonment for a period of one month and the fine amount so, realised shall be given to the complainant as compensation under Sec. 357(1)(b) of the Cr.P.C. - (iv) The petitioner is given four months' time from 15.3.2017 to pay the fine amount. Crl.R.P.26/17 - : 7 :- - (v) The petitioner will appear before the trial court at 11 a.m. on 22.7.2017 to comply with the sentence for payment of the fine amount of Rs.61,350/-. Needless to say, in default of payment of fine, he will have to suffer simple imprisonment for a period of one month. The fine amount so realised shall be disbursed to the complainant. - (vi) Until 22.7.2017, all further coercive steps that have taken against the petitioner in pursuance of the impugned judgments will stand deferred. - (vii) If there is default on the part of the petitioner either in appearing before the trial court on 22.7.2017 or on payment the fine amount, the Magistrate shall 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