M/S Bhagachithra Films (P) Ltd. v. Akin Communications & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 10TH DAY OF DECEMBER 2013/19TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 2283 of 2010 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA 179/2009 of ADDL.SESSIONS COURT (ADHOC)-II, ERNAKULAM DATED 12-11-2009** **AGAINST THE JUDGMENT IN ST 462/2008 of JUDICIAL FIRST CLASS MAGISTRATE-V, ERNAKULAM DATED 06-03-2009** **REVISION PETITIONERS/APPELLANTS/ACCUSED.:** **-----------------------------------------** **1. M/S. BHAGYACHITHRA FILIMS (P) LTD., SREENIVAS, XL/8068, CHITTOOR ROAD, NEAR SUDHEENRA HOSPITAL, REP. BY ITS MANAGING DIRECTOR, MR.GOPAN.** **2. MR.GOPAN, S/O. K.NARAYANAN NAIR, MANAGING DIRECTOR, M/S. BHAGYACHITHRA FILIMS (P), LTD.** **BY ADV. SMT.GISA SUSAN THOMAS** **RESPONDENTS/COMPLAINANT/STATE.:** **-------------------------------** **1. M/S. AKIN COMMUNICATIONS, HAVING ITS OFFICE AT 39/4561, HIG NO.38, PANAMPILLY NAGAR, KOCHI, REP. BY ITS MANAGING PARTNER, POLACHAN MANIANKOT.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS T.VARGHESE R1 BY ADV. SMT.ACHU SUBHA ABRAHAM R1 BY ADV. SRI.M.F.MOHAMMOD SIYAD R2 BY PUBLIC PROSECUTOR SRI. REJI JOSEPH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 2283 of 2010 -----------------------------------------------------Dated this the 10[th] day of December, 2013** **ORDER** This Revision Petition is filed challenging the concurrent findings of conviction entered and the sentence imposed on the Revision Petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No.179/09 on the files of the Additional Sessions Judge, (Ad hoc-II), Ernakulam. The above appeal was filed challenging the judgment finding that the Revision Petitioners are guilty of the said offence, passed in S.T.No.462/2008 on the files of the Judicial First Class Magistrate's Court-V, Ernakulam. According to the impugned judgment, the 1[st] Revision Petitioner shall pay a fine of `5,000/- and the 2[nd] **Crl.R.P. No. 2283 of 2010** -: 2 :- revision petitioner is sentenced to undergo imprisonment till rising of the court and to pay a fine of `1,10,000/- which shall be deposited before the Judicial First Class Magistrate's Court-V, Ernakulam within one month from 12/11/2009 failing which the 2[nd] revision petitioner shall suffer simple imprisonment for three months. The fine amount of `1,10,000/- will be given to the complainant as compensation under Sec.357(3) of the Cr.P.C. 2. The first respondent/complainant is a partnership firm engaged in the business of media advertisement, design printing etc. The second appellant/second accused is the Managing Director of the first appellant/first accused company. The appellants/accused Nos.1 and 2 have given advertisement of Malayalam movie “Time” in various newspapers through the first respondent/complainant. On these aspects, there is no dispute between the parties. According to the first respondent/complainant, **Crl.R.P. No. 2283 of 2010** -: 3 :- a total sum of Rs.4,61,223.92 became due from the appellants/accused Nos.1 and 2 and five cheques were given by the second appellant/second accused on behalf of the first appellant/first accused in discharge of liability. The five cheques so relied on by the first respondent/complainant are (1) Cheque bearing the No.104792 dated 16.8.2007 for Rs.50,000/-, (2) Cheque bearing the No.104793 dated 23.8.2007 for Rs.50,000/-, (3) Cheque bearing the No.104794 dated 27.8.2007 for Rs.1,00,000/-, (4) cheque bearing the No.104795 dated 31.8.2007 for Rs.1,00,000/- and (5) Cheque bearing the No.104796 dated 3.9.2007 for Rs.1,00,000/- drawn on the State Bank of Travancore, Broadway Branch, Ernakulam. Pursuant to the dishonour of the above five cheques by the drawee bank, the first respondent/complainant lodged five complainants against the appellants/accused Nos.1 and 2 under Sec.138 of the N.I. Act. The five complaints so lodged by the first **Crl.R.P. No. 2283 of 2010** -: 4 :- respondent/complainant against the appellants/accused Nos.1 and 2 are (1) S.T.No.462/2008, (2) S.T.No.466/2008, (3) S.T.No.467/2008, (4) S.T.No.574/2008 and (5) S.T.No.864/2008 on the files of the Judicial First Class Magistrate's Court-V, Ernakulam. All the above five cases ended in conviction and sentence of the appellants/accused Nos.1 and 2 under Sec.138 of the N.I. Act. Against the conviction and sentence in S.T.No.462/2008, S.T.No.574/2008, S.T. No.467/2008, S.T.No.466/2008 and S.T.No.864/2008, both appellants/accused Nos.1 and 2 preferred Criminal Appeal Nos.179/09, 180/09, 182/09, 183/09 and 118/09 respectively challenging the same. This revision petition is filed challenging the concurrent findings of conviction and modified sentence imposed in Crl. Appeal No.179/09. 3. In defence, the revision petitioners contended that signed blank cheques were entrusted with the 1[st] **Crl.R.P. No. 2283 of 2010** -: 5 :- respondent/complainant by them in the course of business transaction and a sum of `50,000/- was paid finally towards the full and final settlement of the transactions. It is argued by the learned counsel for the revision petitioners that Ext.P1 cheque is not supported by any consideration and the presumption under Secs.118 and 139 of the N.I. Act in favour of the payee of the cheque are not available in favour of the 1[st] respondent/complainant. According to the learned counsel, the non-production of the statement of account is fatal to the case of the 1[st] respondent/complainant. 4. The learned counsel for the Revision Petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The learned counsel urged for a re-appreciation of evidence once again, which is not permissible under the revisional jurisdiction unless any kind of perversity is found in the appreciation of evidence. The Revision **Crl.R.P. No. 2283 of 2010** -: 6 :- Petitioner failed to point out any kind of perversity in the appreciation of evidence. Though the revision petitioners contended that the cheque was not supported by any consideration, nothing brought out in evidence to substantiate the said contention. Similarly, the settled legal position is that no burden is cast on the 1[st] respondent/complainant to plead and prove the particulars of the original transaction (Devan v. Krishna Menon - 2010 (2) KLT 397). In M/s. M. M. T. C. Ltd. and another v. M/s. Medchl Chemicals and Pharma (P) Ltd. and another (AIR 2002 SC 182), the Supreme Court held that there is no requirement that the complainant must allege in the complaint that there is a subsisting liability. The burden of proving that there is no subsisting liability on the accused. In Sreenath v. T. Joyson (2012 (1) KLT 32), the Court held that a mere challenge set up by the accused regarding the execution of the cheque itself does not cause any inhibition in the court accepting the testimony of the **Crl.R.P. No. 2283 of 2010** -: 7 :- complainant, if it is found reliable to hold that that there was due execution. In Hiton P. Dalal v. Bratindranath Banerjee (2001 (6) SCC 16 = AIR 2001 SC 3897), the Supreme Court held that mere fanciful defence though plausible, cannot be sufficient to rebut the presumption under Sec.139 of the N.I. Act. In Rangappa v. Mohan [2010 (2) KLT 682(SC)], the Supreme Court held that a presumption mandated under Sec.138 of the N.I. Act includes existence of a legally enforceable debt. When applying the parameters laid down by the Apex Court and this Court. I find that the revision petitioners have miserably failed to rebut the presumption under Secs.118(a) and 139 of the N.I. Act. The courts below had concurrently found that the complainant/1[st] respondent had successfully discharged initial burden of proving execution and issuance of the cheque; whereas the Revision Petitioner had failed to rebut the presumption under Section 118(a) and 139 of the N.I. **Crl.R.P. No. 2283 of 2010** -: 8 :- Act which stood in favour of the 1[st] respondent. So also, it is found that the debt due to the 1[st] respondent was a legally enforceable debt and Ext.P1 was duly executed and issued in discharge of the said debt. I do not find any kind of illegality or impropriety in the said findings or perversity in appreciation of evidence, from which the above findings had been arrived. Therefore, I am not inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction. 5. The counsel for the Revision Petitioners submits that challenge under this Revision is confined to sentence only. The sentence imposed on the 2[nd] Revision Petitioner is disproportionate with the gravity and nature of the offence. He further submits that the 2[nd] Revision Petitioner is willing to pay the compensation as ordered by the court below; but he is unable to raise the said amount forthwith due to paucity of funds. But he is ready to pay the **Crl.R.P. No. 2283 of 2010** -: 9 :- compensation within six months. 6. The learned counsel for the 1[st] respondent submits that the cheques were issued in the year 2007 in favour of the 1[st] respondent/complainant and the 2[nd] revision petitioner had already availed of sufficient time to pay off the debt amount. So, a short period alone can be given to pay the compensation. 7. Having regard to the above submission also, the 2[nd] revision petitioner is given six months time to pay the compensation. 8. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned counsel for the revision petitioners prayed for setting aside the sentence of imprisonment also. If the 2[nd] revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will put put in great hardship. 9. The Supreme Court, in the decision in Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC **Crl.R.P. No. 2283 of 2010** -: 10 :- 2566), held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in Vijayan vs. Baby (2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 10. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above and submission made at the Bar, expressing willingness to pay the compensation within six months, I am inclined to grant six months time to pay the compensation. Similarly, the substantive sentence of imprisonment for six months will stand reduced and modified to **Crl.R.P. No. 2283 of 2010** -: 11 :- simple imprisonment for one day till rising of the court. Consequently, this Revision Petition is liable to be disposed of subject to the following terms. i. The 1[st] revision petitioner shall pay a fine of `5,000/- and the 2[nd] Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii. The 2[nd] Revision Petitioner shall pay a compensation of `1,10,000/- (Rupees one lakh ten thousand only) to the 1[st] respondent/complainant as compensation within a period of six months from today under Sec.357(3) of the Cr.P.C.. iii. The 2[nd] Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 10/6/2014 with sufficient proof to show payment of compensation. The sentence of imprisonment for one day will be concurrent with the sentence imposed in the four other connected revision petitions. iv. In default, the 2[nd] Revision Petitioner shall **Crl.R.P. No. 2283 of 2010** -: 12 :- undergo simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. Sd/- (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge