Mohandas, S/o Kesavan v. Pradeep, S/o Kunjiandi and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938** **Crl.Rev.Pet.No. 179 of 2014** **-----------------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 597/2011 OF ADDITIONAL SESSIONS COURT, PALAKKAD** **AGAINST THE JUDGMENT IN S.T.NO. 2986/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD** **---------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **---------------------------------------------------------------------------** **MOHANDAS, S/O.KESAVAN, AGED 54 YEARS, NELLIPARAMBU HOUSE, KOTTAYI, ALATHUR, PALAKKAD.** ## **BY ADV. SRI.JACOB SEBASTIAN** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE :** **---------------------------------------------------------------------------------------------** **1. PRADEEP, S/O. KUNJANDI, AGED 34 YEARS, PADINCHAKARA HOUSE, KOTTAYI, ALATHUR TALUK, PALAKKAD, PIN-678 572.** **2. STATE , REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY ADV. SRI.P.K.MOHANAN(PALAKKAD) R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.179 Of 2014 --------------------------------- Dated this the 8th day of February, 2017. ## O R D E R The revision petitioner is the accused in S.T.No.2986/2009 on the file of the Judicial First Class Magistrate Court-I, Palakkad, for offence alleged under Sec.138 of the Negotiable Instruments Act, instituted on the basis of a complaint filed by the 1st respondent herein. The trial court as per the impugned judgment dated 2.12.2011 had convicted the petitioner for the above offence and had sentenced him to undergo simple imprisonment for a period of 2 months and had directed further that the accused should pay compensation of Rs.1.25 Lakhs to the complainant under Sec.357(3) of the Cr.P.C., and in default thereof the accused shall undergo simple imprisonment for a period of 2 months. Aggrieved thereby, the petitioner had preferred Crl.A.No.597/2011 before the Sessions Court, Palakkad. The appellate court (Court of Additional Sessions Judge, Palakkad), as per the impugned judgment dated 8.11.2013 had dismissed the appeal and had thereby confirmed the conviction as well the impugned sentence. Aggrieved by the said concurrent findings of both the courts below, the petitioner has ::2:: Crl.R.P.No.179 Of 2014 preferred the instant revision by taking recourse to the provision under Secs.397 r/w 401 of the Cr.P.C. 2. Heard Sri.Jacob Sebastian, learned counsel appearing for the revision petitioner-accused, Sri.P.K.Mohanan (Palakkad), learned counsel appearing for R-1 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. The gist of the prosecution allegation is that towards discharge of liability due to the complainant, the revision petitioneraccused had issued Ext.P-1 cheque dated 1.6.2009 for an amount of Rs.1.25 Lakhs in favour of the complainant. The complainant had presented the cheque which resulted in dishonour. The complainant had given statutory notice under Sec.138(b) of the N.I.Act to the accused as per Ext.P-4, which was duly received by the accused and he had submitted Ext.P-6 reply denying any transaction with the accused. This resulted in the 1st respondent in preferring the complaint. During the trial, the complainant himself was examined as PW-1 and had marked Exts.P-1 to P-6 documents. The defence had examined DW-1 (Bank Manager) and had marked Exts.D-1 to D-2 documents. PW-1 had deposed broadly in consonance with the version given in his complaint. It is brought out in evidence that the complainant and ::3:: Crl.R.P.No.179 Of 2014 accused were known to each other and the accused had in connection with the expenses that are said to arise for his daughter's educational purpose had requested the complainant to lend money and the accused on 8.5.2009 had borrowed a sum of Rs.1.25 Lakhs from the complainant by promising to repay the same within 2 weeks. Later, Ext.P-1 cheque dated 1.6.2009 for Rs.1.25 Lakhs was given by the accused to the complainant in the latter's residence. The said cheque resulted in dishonour. It was found by both the courts below that there was discrepancy regarding the version given by the complainant in the complaint as well as in the chief examination. The complainant had stated that the amount was borrowed by the accused on 8.5.2009 and later the cheque was given. However, in the chief examination the complainant had stated that the cheque was given on 8.5.2009 at the time of borrowal of the money. It is also clearly stated by the complainant that the date as well as the figures, etc., were all entered in the cheque by the accused and the cheque was given to the complainant in his residence when some of his relatives were also present there. That he has advanced the money to the accused on hearing his version that he needs that money in connection with her daughter's educational expenses. Whereas the suggestion made by the accused during cross- ::4:: Crl.R.P.No.179 Of 2014 examination of PW-1 was that the accused had no relationship whatsoever with the complainant and the cheque in question was given as a blank signed one to another person, one Sri.Jyothi Prakash, with whom the accused has transaction and the cheque would have been misused by him due to subsequent bad relationship between the accused and Jyothiprakash, etc. Except making this suggestion, the accused had not adduced any evidence to show the relationship with Jyothiprakash. The accused also tried to impress upon the trial court through DW-1 that the accused had already availed educational loan for his daughter's educational purposes and therefore the version given by the complainant is per say false, etc. Both the courts below were not prepared to disbelieve the complainant merely on the basis of this aspect. While cross-examination of PW-1, it was found by both the courts below that there was no dispute that the signature of the cheque was that of the accused and the cheque was issued from an account maintained by the accused. Taking into account the overall evaluation of the evidence on record, both the trial court and the appellate court came to the conclusion that the defence suggestion is highly improbable and has not in any manner been vindicated or proved whereas the evidence given by PW-1 was found to be broadly credible and ::5:: Crl.R.P.No.179 Of 2014 believable. Both the courts below have pointedly considered the aspect that whether there was discrepancy in the version given by PW-1 as to on which day cash was given by the complainant to the accused. As stated earlier, in the complaint as well as in chief examination, the complainant has stated that the borrowal of the money took place on 8.5.2009 whereas the cheque in question was dated 1.6.2009. This version was deviated in the cross-examination of PW-1 that the cheque in question was given on 8.5.2009 when the borrowal has taken place. But both the courts below have held that this minor discrepancy will not falsify the core of the complainant's evidence. 4. In the celebrated case, Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 = 2010 KHC 4325, the Apex Court has held that the presumption mandated by Sec.139 includes a presumption that there exists a legally enforceable debt or liability and this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested and there can be no doubt that there is an initial presumption which favours the respondent complainant. Both the courts below have found that based on the evidence of the complainant, he is entitled to get the benefit of presumption of law confirmed by ::6:: Crl.R.P.No.179 Of 2014 Sec.139 and 118 of the N.I.Act. The version of the defence suggested by the accused was found to be weak and feeble so as to give any credibility to it. It is in the light of this that both the courts below have come to the conclusion that the defence version is not in any manner probabilised and whereas the version given by the complainant is broadly believable and credible. As regards the discrepancy in the evidence given by the complainant, it has been held by the Apex Court in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 in para 9, which reads as follows: “9. The trial Judge found in favour of the accused by taking note of some discrepancies in the complainant's version. As per the trial Judge, in the course of the cross-examination the complainant was not certain as to when the accused had actually issued the cheque. It was noted that while the complaint stated that the cheque had been issued in December 2000, at a later point it was conceded that the cheque had been handed over when the accused had met the complainant to obtain the work completion certificate for his house in March 2001. Later, it was stated that the cheque had been with the complainant about 15-20 days prior to the presentation of the same for encashment, which would place the date of handing over of the cheque in January 2001.” The Apex Court in the case T.Vasanthakumar v. Vijayakumari reported in (2015) 8 SCC 378 has held that where the cheque as well as the signatory thereon has been accepted by the accused, the presumption under Sec.139 would operate and then the burden shifts on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. In that case, the Apex Court found that the explanation ::7:: Crl.R.P.No.179 Of 2014 given by the accused was unacceptable and as the accused has failed to discharge the burden, the High Court was misplaced in putting the burden of proof on the complainant. It would be profitable to refer to paras 9 to 12 of the said ruling of the Apex Court in T.Vasanthakumar v. Vijayakumari reported in (2015) 8 SCC 378 which read as follows: '9. This Court has held in its three judge bench judgment in Rangappa v. Sri Mohan (2010 (2) KLT 682 (SC) : (2010) 11 SCC 441): _“The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complainant.”_ 10. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence. 11. Further, the High Court relied heavily on the printed date on the cheque. However, we are of the view that by itself, in absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20/05/2006. The accused in her evidence brought out nothing to prove the debt of 1999 nor disprove the loan taken in 2006. 12. In light of the above reasoning, we find that the learned High Court was misplaced in putting the burden of proof on the complainant. As per Section 139, the burden of proof had shifted on the accused which the accused failed to discharge. Thus, we find merit in this appeal. ::8:: Crl.R.P.No.179 Of 2014 As regards the contention raised by the defence based on the evidence of DW-1, it is only to be noted that the complainant has only stated that the accused has informed him that he wants money in connection with his daughter’s educational purposes. Both the courts below found that merely because DW-1 was given evidence that educational loan was granted to the accused at that time will not by itself make the version given by the complainant per say false. May be that the accused wanted more money to meet with his daughter’s educational expenses or may be he had approached the complainant that he needs money in connection with his daughter’s educational purposes in order to persuade the complainant to advance the money and later the accused had used it for some other personal purposes. Therefore, based on the evidence of DW-1, that the accused had already availed educational loan for his daughter’s educational purposes will not by itself in any manner improbabilise the factum of transactions between PW-1 and the accused. The aforesaid concurrent findings of both the courts below cannot be said to be vitiated by gross perversity or unreasonableness. Learned counsel for the petitioner has not been able to convince this Court as to whether the crucial and relevant evidentiary material aspects have been shut out by both the courts below. Resultantly, it is ::9:: Crl.R.P.No.179 Of 2014 only to be held that the revision petitioner has not made out any strong grounds so as to invoke revisional interference with the concurrent findings made by both the courts below regarding the conviction of the accused. 5. As regards the question of sentence, it is to be noted that the trial court as confirmed by the appellate court has ordered to sentence the petitioner for simple imprisonment for 2 months. The cheque amount in question is Rs.1.25 lakhs and both the courts below have ordered to pay compensation to the complainant coming to Rs.1.25 lakhs and in default thereof the accused was ordered to suffer simple imprisonment for 2 months. In the facts and circumstances of this case, this Court is of the view that the substantive sentence of 2 months’ simple imprisonment imposed by the court below would require interference. The Apex Court in the case Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SCC 1907 held that in case of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. Further the Apex Court in the case Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566 has held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal ::10:: Crl.R.P.No.179 Of 2014 overtones and the gravity of the complaint cannot be equated with an offence under IPC and instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice. Accordingly, in the light of these aspects, this Court is of the view that the substantive sentence of 2 months’ simple imprisonment imposed by both the courts below is liable to be interdicted taking into account the facts and circumstances of this case. Accordingly, it is ordered that the said sentence will stand set aside and modified as imprisonment till the rising of the court. The revision petitioneraccused has requested 5 months’ time to pay compensation amount of Rs.1.25 lakhs to the complainant. Accordingly, the following orders and directions are issued: - (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I. Act as per the impugned judgments of the courts below will stand confirmed. - (ii) The impugned substantive sentence of simple imprisonment for 2 months imposed by both the courts below will stand set aside and modified as imprisonment till the rising of the court. - (iii) The punishment imposed by both the courts below that the petitioner should pay compensation of Rs.1.25 lakhs to the complainant under Sec.357(3) of the Cr.P.C., along with the default clause is confirmed. However, the accused is given 5 months' time to pay the said amount to the complainant. The accused is at liberty to pay the amount of Rs.1.25 lakhs to the complainant and the said amount should be paid in instalments and at any rate, the entire payment should be effected within the ::11:: Crl.R.P.No.179 Of 2014 above said 5 months. Upon receiving the amount, the complainant will issue necessary receipts so as to enable the accused to produce such receipts evidencing payment for the satisfaction of the trial court. - (iv) The accused will appear at 11:00 a.m. on 22.7.2017 for receiving the sentence of imprisonment till the rising of the court and to satisfy the trial court about payment of compensation of Rs.1.25 lakhs to the complainant. Needless to say, on default on the part of the accused in making payment of the said amount, he will have to undergo simple imprisonment for a period of 2 months. - (v) Until 22.7.2017, all further coercive steps pending against the petitioner in execution of the sentence will stand deferred. In default of the petitioner either to appear before the court below on 22.7.2017 or to make the payment of compensation amount within the above said stipulated time, then the trial court will be at liberty to proceed further against the petitioner in accordance with law. With these observations and directions, the Crl.R.P stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-