M.K. Baladevagupthan v. State of Kerala and Kalyanakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 6TH DAY OF NOVEMBER 2014/15TH KARTHIKA, 1936** **Crl.Rev.Pet.No. 1463 of 2014 ()** **-------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 170/2013 of SESSIONS COURT, PALAKKAD, DATED 30-06-2014 &** **AGAINST THE ORDER/JUDGMENT IN ST 40/2009 of J.M.F.C. - II, OTTAPPALAM.** **REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED:** ## **--------------------------------------------------------------------------------------------------------** **M.K.BALADEVAGUPTHAN, AGED 59 YEARS, S/O.SANKARA GUPTHAN, SREE VIHAR, AZHIYANNUR.P.O., KADAMBAZHIPURAM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.K.NIJOY** **RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT: -------------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. KALYANAKRISHNAN,, AGED 56 YEARS,** **S/O.KRISHNAGUPTHAN, VALANKALLINGAL HOUSE, AZHIYANNUR.P.O, KADAMBAZHIPURAM, OTTAPPALAM TALUK, PALAKKAD DISTRICT - 678 633.** **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH R2 BY ADV. SRI.K.B.ARUN KUMAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ss** ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1463 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 6[th] day of November, 2014 ## O R D E R Accused in S.T.No.40/2009 on the file of Judicial First Class Magistrate Court-II, Ottapalam, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 1,50,000/-₹ from the complainant and in discharge of the liability, he had issued Ext.P1cheque dated 15.01.2007, which when presented was dishonoured for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonour memo and that was intimated to the complainant on 30.01.2007 evidenced by Ext.P3 memo. The complainant issued Ext.P4 notice 2 Crl. R. P. No.1463 of 2014 dated 05.02.2007 on the same date vide Ext.P4(a) postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. The accused had not paid the amount, but sent Ext.P6 reply notice containing false allegations. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P10 were marked on his side. After closure of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had not borrowed the amount as alleged, but he had borrowed an amount of ₹15,000/- from the complainant in the year 1997 and it was 3 Crl. R. P. No.1463 of 2014 paid through DW1 but the cheque was not returned and mis-using the cheque, the present complaint was filed. In order to prove his case, DW1 was examined and Ext.D1 was marked. After considering the evidence on record, court below disbelieve the case of the revision petitioner and found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of 1,50,000/-, as compensation to₹ the complainant, in default to undergo simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.170/2013 before the Sessions Court, Palakkad, and the learned Sessions Judge by the impugned judgment allowed the appeal in part, confirming the order of conviction and direction to pay compensation with default sentence imposed under Section 357(3) of the Code, but modified the substantive sentence to imprisonment, till rising of the court. Dissatisfied with Crl. R. P. No.1463 of 2014 4 the same, the present revision has been filed. 4. Since the second respondent had appeared on admission, this court felt that, the revision can be admitted and can be disposed of on merit, after hearing both sides. So the revision is admitted, heard and disposed of today itself. 5. The counsel for the revision petitioner submitted that, the case of the complainant in Ext.D1 plaint filed by him before the Sub Court and the complainant before this court is contradictory. Further the evidence of DW1 will go to show that, the case of the revision petitioner is more probable and the cheque leaf of the year 1997 was mis-used and the present complaint was filed. So he had rebutted the presumption. The courts below were not justified in convicting the revision petitioner for the offence alleged. 6. On the other hand, the counsel for the second respondent submitted that, the courts below have given cogent reasons for disbelieving the case of the 5 Crl. R. P. No.1463 of 2014 revision petitioner and rightly convicted him for the said offence and the concurrent findings of the court below on this aspect on facts do not call for any interference. 7. The learned Public Prosecutor supported the concurrent findings of the court below on this aspect. 8. The case of the complainant in the complaint was that, accused borrowed a sum of 1,50,000/- and he₹ had issued Ext.P1 cheque dated 15.01.2007 in favour of the complainant in discharge of that liability. The case of the revision petitioner was that, he had borrowed only 15,000/-₹ through DW1, Sankara Gupthan and the amount was paid, but the cheque was not returned. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of the case of the complaint. He denied the suggestions that, the revision petitioner had borrowed only 15,000/- and that was paid.₹ It will be seen from Ext.P8 that he had withdrawn the amount from the bank just prior to the transaction. It is true that, in Ext.D1, it was mentioned that, it was paid in several Crl. R. P. No.1463 of 2014 6 occasions. But it is also seen from the documents produced that, the plaint was amended later and that portion was deleted and it was mentioned that it was to paid in a lump. Further the case of the revision petitioner was that, he had borrowed only 15,000/- and paid through DW1, Sankara₹ Gupthan, but Sankara Gupthan had no case that it was at his instance that the amount was borrowed. His case was that he was only present at the time when the revision petitioner paid 15,000/-. Further it will be seen from₹ Ext.P9 that the suit filed by the complainant for recovery of the amount on the basis of Ext.P1 cheque was decreed in his favour. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the case of the revision petitioner is not believable and the evidence of DW1 is not inspired confidence to rely on and rightly come to the conclusion that the complainant had proved that the revision petitioner borrowed 1,50,000/-₹ and in discharge of the liability, he had issued Ext.P1 cheque. The revision petitioner had no case that, he had 7 Crl. R. P. No.1463 of 2014 paid the amount after the receipt of the notice. Once it is proved that, the revision petitioner had not paid the amount within 15 days on receipt of the notice, then offence under Section 138 of the Negotiable Instruments Act is attracted. So the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and concurrent findings of the court below on this aspect, on facts do not call for any interference. 9. As regards the sentence is concerned, though the trial court had imposed substantive sentence of two months apart from the direction to pay the cheque amount of ₹1,50,000/- as compensation, in default to undergo simple imprisonment for three months under Section 357(3) of the Code, the appellate court had reduced the substantive sentence of imprisonment, till rising of the court by retaining the compensation awarded. So maximum leniency has been shown by the appellate court while imposing the sentence, which cannot be said to be excessive or harsh. So I do not find any reason to interfere Crl. R. P. No.1463 of 2014 8 the sentence imposed as well. 10. While the revision was about to be disposed of, the counsel for the revision petitioner prayed six months time to pay the amount. But this was opposed by the counsel for the 2[nd] respondent on the ground that the case is of the year 2007. So considering the amount involved and also considering the fact that the case is of the year 2007, this court feels that time for six months sought for by the revision petitioner appears to be excessive. But taking a lenient view, some time can be granted. Four months time from today is granted to the revision petitioner to pay the amount. 11. The petitioner is directed to pay the amount on or before 06.03.2015, till then, the execution of the sentence is directed to be kept in abeyance. If the petitioner pays the amount directly to the complainant and proof of payment is produced before the court below and presenting the complainant before the court to acknowledge the same, then the court below is directed to treat the same as Crl. R. P. No.1463 of 2014 **==> picture [8 x 10] intentionally omitted <==** substantive compliance of the direction to pay compensation and record the payment in respective registers as provided in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** and permit the revision petitioner to serve the substantive sentence of imprisonment, till rising of the court. With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately. **==> picture [25 x 11] intentionally omitted <==** K. Ramakrishnan, Judge **==> picture [84 x 12] intentionally omitted <==** P.A. to Judge ss