Martin @ Yesudas v. Rajendran C.P. and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-09-18
Court Decision / Holding: Revision petition stands allowed in part. Conviction under Section 138 NI Act affirmed. Sentence slightly reduced to a fine of Rs. 76,000 with default imprisonment for one month. The fine, when realised, to be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C. The petitioner was granted ten months to pay the fine.
Final Disposition: Revision petition partly allowed; conviction upheld; sentence modified to fine with default imprisonment; compensation to be paid to complainant; time granted to pay the fine (ten months). The order also states that if any amount was deposited earlier, it will be treated as part payment of the fine.

Parties to the Case

Appellants / Petitioners

Martin @ Yesudas

Respondents

Rajendran C.P.
State of Kerala represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.N. Suresh
• Smt. A.S. Chinju Duth
• Smt. Dhanuja Vettathu
• Sri. V.S. Anu Mon

Counsels for Respondents

• Sri. T.X. Sham Joseph
• Sri. S. Sunil Kumar (Palakkad)
• Sri. E. C. Bineesh (Public Prosecutor)

Case Synopsis & Summary

The Kerala High Court heard a criminal revision petition challenging a conviction under Section 138 of the Negotiable Instruments Act, 1881. The respondent complainant alleged that the revision petitioner, in a building contract for constructing a residential building, issued Ext. P1 cheque to discharge a liability after non-performance, with a claimed loss of Rs 60,000. PW1 testified that he had advanced Rs 1,00,000 during a pause in construction and that he had documents to prove it, but the petitioner contended that the amount, if any, was provided by PW1 for the building project and not tied to any business debt, and that the cheque was misused to file this complaint. The petitioner relied on M.S. Narayana Menon alias Mani v. State of Kerala (2006) 6 SCC 39 to argue that absence of account books could support a theory that the cheque was security; the court found this reasoning inapplicable since the case did not involve a business transaction with the contractor. After evaluating evidence, the court affirmed the conviction but reduced the sentence to a fine of Rs 76,000 with default simple imprisonment for one month, directing that the fine, once realised, go to the complainant as compensation under Cr.P.C. 357(1)(b). The revision petition was allowed in part.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(1)(b) Cr.P.C.

Legal Doctrines & Maxims

null

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner argued that PW1 did not produce documents showing that Rs. 1,00,000 was advanced to him, so the conviction—under Sec. 138 NI Act—should be unsustainable. Relying on M.S. Narayana Menon alias Mani v. State of Kerala, the petitioner claimed lack of corroborative accountbooks could support his defense that the cheque was given as security rather than for a debt.

Contentions of Respondents

The complainant contended that the petitioner issued Ext. P1 cheque to discharge liability arising from the failed building project. The evidence, including PW1’s testimony about payment and building delays, supported the case that the cheque was issued to cover the loss due to non-performance.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
M.S. Narayana Menon alias Mani v. State of Kerala and another	(2006) 6 SCC 39	Distinguished	The court noted that the Narayana Menon decision concerned a case where the cheque was alleged to be security in a business transaction and where the absence of account books could lead to acquittal or conviction being set aside. The present case did not involve a business transaction; thus, the cited decision was not applicable to the facts on record and was distinguished.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940** **Crl.Rev.Pet.No. 1360 of 2017** **CC 577/2015 of TEMPORARY JUDL. FIRST CLASS MAGISTRATE COURT, NJARAKKAL** **Crl.A 298/2016 of ADDL.SESSIONS COURT - II, NORTH PARAVUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MARTIN @ YESUDAS AGED 48 YEARS, S/O. MARTIN, KOYIKKARANPARAMBIL HOUSE, NAYARAMBALAM P.O, ERNAKULAM DISTRICT PIN 682 509** **BY ADVS. SRI.T.N.SURESH SMT.A.S.CHINJU DUTH SMT.DHANUJA VETTATHU SRI.V.S.ANU MON** ## **RESPONDENT/RESPONDENT/COMPLAINANT & STATE:** **1 RAJENDRAN C.P. AGED 53 YEARS, S/O. KAMMARA PODUVAL, CHUVATTAPUTHIYA HOUSE, NAYARAMBALAM P.O, ERNAKULAM DISTRICT PIN 682 509** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** **BY ADVS. SRI.T.X.SHAM JOSEPH SRI.S.SUNIL KUMAR (PALAKKAD)** **OTHER PRESENT:** **SRI. E C BINEESH-PUBLIC PROSECUTOR** -2- Crl.Rev.Pet.No. 1360 of 2017 **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDER** **The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act, 1881 ( for short “the N.I.Act”).** ## **2. Heard.** **3. The learned counsel for the revision petitioner has argued that since PW1 did not produce the documents showing that PW1 had advanced Rs.1,00,000/to the revision petitioner, the conviction and sentence passed by the courts below cannot be sustained. The learned counsel relied on the decision of the Apex Court in M.S.Narayana Menon alias Mani v. State of Kerala and another [(2006) 6 SCC 39] to** **support his argument.** Crl.Rev.Pet.No. 1360 of 2017 -3- **4. The contention of the complainant is that the complainant entered into a building contract with the revision petitioner for constructing a residential building for the complainant. Since the revision petitioner could not perform his part as per the stipulations in the contract, the complainant sustained a loss to the tune of Rs.60,000/- and towards the discharge of the said liability, the revision petitioner issued Ext.P1 cheque in favour of the complainant.** **5. In order to prove the case of the complainant, PW1 was examined. PW1 reiterated the contentions in the complaint. PW1 stated that the construction work was stopped for some period and at that time, PW1 advanced an amount of Rs.1,00,000/by way of cheque to the revision petitioner. PW1 answered in affirmative to a question that he** Crl.Rev.Pet.No. 1360 of 2017 -4- **was having documents to prove the same.** **6. The contention of the revision petitioner is that the revision petitioner received some amount from PW1 for the construction of the residential building of PW1 and at the time of receiving the said amount, the revision petitioner issued Ext.P1 cheque to the complainant and the said cheque had been misutilised by the complainant to file the present complaint. PW1 did not have any contention that the amount due to the complainant was the amount which was given by the complainant to the revision petitioner by way of cheque. The specific case of the complainant is that the revision petitioner issued Ext.P1 cheque in discharge of the liability towards the loss sustained by the complaint as the construction work of the building was not completed by the** Crl.Rev.Pet.No. 1360 of 2017 -5- **revision petitioner as undertaken. In** **M.S.Narayana Menon (supra), the Apex court held that in case of dishonour of a cheque alleged to have been issued towards outstanding dues in business dealing, if the account books are not produced by the complainant, the contention of the accused that the cheque was issued as security can be believed and the conviction can be set aside. In this case, the amount due to the complainant was not in connection with any business transaction between the complainant and the revision petitioner. Therefore, the decision in M.S.Narayana Menon (supra) is not applicable to the facts of the case in hand. Therefore, the non-production of receipts pertaining to the payment of amount to the revision petitioner by way of cheque in the year 2013 by PW1 for the construction of his building, is not at all** Crl.Rev.Pet.No. 1360 of 2017 -6- **material to the prosecution case. In view of the above reasons, the argument in this regard advanced by the learned counsel for the revision petitioner cannot be accepted.** **7. Having gone through the relevant inputs, I am satisfied that the courts below correctly appreciated the oral and documentary evidence and concurrently found that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I.Act and committed the offence under Section 138 of the N.I.Act, rejecting the contentions of the revision petitioner. No material has been brought to the notice of this Court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, I find no reason to interfere with the verdict of** Crl.Rev.Pet.No. 1360 of 2017 -7- **conviction passed by the courts below concurrently under Section 138 of the N.I.Act. The sentence awarded by the appellate court also does not warrant any interference by this Court.** **8. Considering the facts and circumstances of the case, including the nature of transaction, I am of the view that the sentence awarded by the appellate court can be modified and reduced to a fine of Rs.76,000/-(Rupees seventy six thousand only) and in default to simple imprisonment for one month to meet the ends of justice. It is ordered accordingly. If the fine is realised, the entire amount shall be given to the complainant as compensation under Section 357(1)(b) Cr.P.C.** **In the result, this revision petition stands allowed in part as above.** **The revision petitioner is granted ten** Crl.Rev.Pet.No. 1360 of 2017 -8- **months to pay the fine as requested by the learned counsel for the revision petitioner. Needless to state that if the revision petitioner had already deposited any amount before the trial court pursuant to the direction of this Court, the said amount will be treated as part payment of the fine.** **Sd/-** **B.SUDHEENDRA KUMAR** **JUDGE** Scl.22.9