Mauvancheri Ashraf v. Ammad P. and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ``` THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945 ``` ## **`CRL.REV.PET NO. 1107 OF 2019`** ``` AGAINST THE JUDGMENT IN CRA 239/2017 DATED 13.08.2019 ON THE FILE OF ADDITIONAL ``` ``` DISTRICT & SESSIONS COURT, VADAKARA IN ST 10/2016 (C.C. NO.983/2015) DATED 25.05.2017 ON THE FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, VADAKARA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` MAUVANCHERI ASHRAF, AGED 38 YEARS S/O.ABDULLA, BUSINESS MANGATTUMMAL HOUSE, P.O.CHERAPURAM, KAKKATTIL VIA., VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV ZUBAIR PULIKKOOL ``` ## **`RESPONDENTS/RESPONDENT/COMPLAINANT & STATE:`** ``` 1AMMAD P., AGED 65 YEARS S/O.POCKER, PULLAROT HOUSE, RESIDING AT MAUVANCHERI THAZHAKUNI P.O., CHERAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 507. 2STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. BY ADV SRI.P.VENUGOPAL (1086/92) ``` ``` ADV.SMT SEENA C.-GP ``` ## **`THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION`** ``` ON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Rev.Pet. No.1107 of 2019 2 ## **ORDER** ``` Dated this the 21[st] day of December, 2023 ``` Accused in S.T. No.10/2016 before the Judicial Magistrate of the First Class-II, Vadakara, is the revision petitioner. He was convicted and sentenced by the learned Magistrate for an offence under Section 138 of the Negotiable Instruments Act, 1881. The sentence imposed was simple imprisonment for a period of one and half years and pay a fine of Rs.17 lakhs. The fine, if realised was ordered to be paid as compensation to the 1[st] respondent/complainant. The appeal filed by the petitioner ended in dismissal. Aggrieved thereby, the petitioner filed this revision petition. 2. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and the learned Public Prosecutor. 3. The 1[st] respondent filed a complaint with the following allegations: The petitioner is a business man. On his request, an amount of Rs.12 lakhs was advanced by the 1[st] respondent to him for investing in his business. Understanding Crl.Rev.Pet. No.1107 of 2019 3 between the parties, was that profit at the rate of Rs.1,500/per Rs.1,00,000/- would be paid every month to the 1[st] respondent. Although, the profit was paid for a few months, the petitioner failed to continue payment and hence, the 1[st] respondent insisted to return the money. Accordingly, the petitioner had issued Ext.P1 cheque drawn on the HDFC Bank on 08.10.2012 to effect repayment. The further allegation is that when the cheque was presented for encashment, it was returned unpaid for want of sufficient funds with the account of the petitioner and despite issuance of the demand notice, he did not make payment. 4. On the aforesaid accusation a trial was held. Oral evidence of PW1 and PW2 and documentary evidence, Exts.P1 to P14 were let in before the learned Magistrate. On appreciating that evidence, the learned Magistrate found the petitioner guilty and convicted. 5. Before the appellate court the petitioner has raised contentions that the evidence tendered by the 1[st] respondent was insufficient to prove execution of Ext.P1 and also payment of money by him to the petitioner. It was contended that despite denial of execution and issuance of the cheque by the Crl.Rev.Pet. No.1107 of 2019 4 petitioner, the trial court did not insist on the 1[st] respondent to prove execution of the cheque. As regards inconsistency between the contents of Ext.P3 notice, the complaint and the oral testimony of PW1 also the petitioner had raised contentions. The Appellate Court considered the above contentions and after a detailed re-appreciation of evidence, negatived the said contentions. 6. The learned counsel for the petitioner would submit that the pleadings that are elementary in a complaint alleging an offence under Section 138 of the N.I.Act as enumerated by a Division Bench of this Court in **Basheer K. v. C.K.Usman Koya and Another [2021 (2) KHC 432]** were not pleaded in this case and for that reason itself his prosecution is illegal. In that decision, this Court held that a complaint filed under Section 138 of the N.I. Act should contain factual allegations regarding the following five ingredients, (i) the cheque drawn in a valid account by the holder, (ii) its presentation within six months or validity period; whichever is earlier, (iii) dishonour, (iv) demand by the payee or holder in due course, (v) which demand is within 30 days of dishonour. It is also held that all these ingredients are imbibed in Section 138 of the Act itself. Crl.Rev.Pet. No.1107 of 2019 5 The only fact which has to be proved in addition to attract the offence under Section 138 is that in spite of the demand of notice, the drawer of the cheque failed to make payment within 15 days from the date of receipt of the demand. 7. What pleaded in the complaint are that in order to make repayment of Rs.12 lakhs advanced by the 1[st] respondent the cheque was issued and when presented the cheque, it was returned unclaimed. The other ingredients that the demand notice was issued and the amount was not paid are also stated in the complaint. It is true that it is not stated in specific words that the cheque was drawn in a valid account maintained by the petitioner. Similarly, it is not specifically stated that the cheque was presented within six months of the date of its issue. Also, it was not specified that the notice was within 30 days of receipt of the dishonour memo. But all the dates namely date of issuance of the cheque, date of its dishonour, date of issuance of the demand notice and so on and so forth are stated in the complaint. All the documents evidencing the aforesaid facts were produced along with the complaint. When, those facts are stated in the complaint itself, failure to specify that the cheque was drawn in a valid account, it was presented Crl.Rev.Pet. No.1107 of 2019 6 within six months and the notice was issued within 30 days, etc. are not infractions or lack of pleadings. What is intended by laying down the said parameters is only that the complaint should reflect all such data. When the documents evidencing such facts are produced along with the complaint, the complaint has to be read along with such documents. The question is whether all the relevant facts to constitute the aforementioned requirements reflect in the complaint or not. The complaint in this case certainly contain all such facts. The contention of the learned counsel for the petitioner in that regard is therefore without any merit. 8. The learned counsel for the petitioner further contended that the facts stated in the complaint and evidence are contradictory. While no details about the transaction were stated in the notice in complaint it was stated that the money was invested in the business of the petitioner. It was improved in the evidence that the money was lent. Pointing out those inconsistency, it is contended by the learned counsel for the petitioner that the very case of the 1[st] respondent is doubtful and therefore it cannot be said that Ext.P1 is supported by consideration. It is also contended that execution of Ext.P1 is Crl.Rev.Pet. No.1107 of 2019 7 not admitted by the petitioner and evidence tendered by the 1[st] respondent is not sufficient to prove its execution. Therefore, no presumption under Section 139 of the N.I. Act can be drawn in respect of Ext.P1. In that context, it is contended, the inconsistency pointed out above are enough to reject the case of the 1[st] respondent. 9. Of course, during examination under Section 313 of the Code, the petitioner stated that he did not issue such a cheque to the 1[st] respondent. But he did not specifically deny the signature of Ext.P1. PW1 deposed in court that Ext.P1 cheque was executed and signed before him. When, during the cross examination, it was suggested to him that the petitioner did not execute or handover such a cheque, he categorically denied the same. Having gone through the evidence of PW1, I find no reason to disbelieve him in respect of his assertion regarding execution of Ext.P1. In the said circumstances, findings of courts below that execution of Ext.P1 has been duly proved, cannot be held to be faulty. The said concurrent finding is not therefore liable to be interfered with by this Court in exercise of the revisional jurisdiction under Section 401 of the Code. Crl.Rev.Pet. No.1107 of 2019 8 10. As regards the statutory requirements, there is no serious contest on the part of the petitioner. Since, execution of Ext.P1 is proved by the 1[st] respondent presumption as allowed under Section 139 of the N.I. Act is liable to be drawn. The 1[st] respondent has produced copies of the statements of account relating to his Bank. The contention of the 1[st] respondent that he paid the money through cheques is substantiated by that evidence also. The petitioner, however, did not adduce evidence which is sufficient to rebut the presumption. 11. In the light of the aforesaid findings, the challenge to the concurrent findings that led to the conviction of the petitioner are unassailable. As regards the sentence, the learned counsel for the petitioner would submit that when there is already a decree as evidenced by Ext.P6 allowing the 1[st] respondent to realise the amount due under Ext.P1 along with interest, the courts below ought not to have ordered an amount of Rs.17 lakhs as compensation. In this regard, the learned counsel for the petitioner placed reliance on **Vijayan R. v. Baby and Another [2012 (1) SCC 260].** The Apex Court has observed in the said decision that in a proceeding under Section 138 of the Negotiable Instruments Act, Crl.Rev.Pet. No.1107 of 2019 9 compensation shall ordinarily be ordered in the event of conviction and that will enable avoiding parallel proceedings, namely, the prosecution under Section 138 of the N.I. Act and the civil suit for realisation of the amount due under the very same cheque. It was further observed that the compensation shall ordinarily include interest at the rate of 9% per annum subject to maximum of double the amount of the cheque. Those observations do not prohibit the payee from filing a complaint as well as a suit. Therefore, already there is a decree in favour of the 1[st] respondent is not a reason to interfere with the order directing payment of compensation. However, the submission of the learned counsel concerning the substantive sentence, that it is exorbitant considering the nature of the offence has force. The courts below awarded a substantive sentence of imprisonment for a period of 18 months. It is established that the transaction was in connection with the business of the petitioner. Imposing imprisonment for such a period, while considering the amount involved and also the nature of transaction, is unwarranted. In the circumstances, the sentence is liable to be interfered with. Accordingly, this revision petition is allowed in Crl.Rev.Pet. No.1107 of 2019 10 part. The conviction is confirmed. The sentence is modified. The petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.17 lakhs. In the event of default of payment of the amount of fine the petitioner shall undergo simple imprisonment for a period of four months. If the fine is realised, the same shall be paid to the 1[st] respondent as compensation under Section 357(1)(b) of the Code. **Sd/-** **P.G.AJITHKUMAR JUDGE** SMF