Muhammed Rafi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936 Crl.Rev.Pet.No. 1767 of 2014 () --------------------------------** **AGAINST THE ORDER IN CRL.A 56/2013 of III ADDL. SESSIONS COURT, KOLLAM DATED 27-06-2014** **AGAINST THE JUDGMENT IN ST 1278/2010 of J.M.F.C.-II, KOLLAM DATED 30-01-2013** **REVISION PETITIONER/APPELLANT: ------------------------------** **MUHAMMED RAFI, S/O. MAJEED, RESIDING AT OLD NO. 17/54, NEW 22-3 MANIYATHOTTAM NO.3, N.H. ROAD, COIMBATORE - 641 001 TAMIL NADU.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU** **RESPONDENTS/RESPONDENTS: ------------------------** **1. THE STATE OF KERALA REPRESETED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. R.SANKARANKUTTY, AGED 59 YEARS S/O. RAMASWAMY CHETTIAR, RESIDING AT REMA NIVAS CUCHERI WARD, CURZONE NAGAR NO. 151, KOLLAM-1.** **R2 BY ADV. SRI.R.KRISHNA RAJ R1 BY PUBLIC PROSECUTOR SRI.N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.1767 of 2014 .................................................. Dated this the 17[th] day of December, 2014. ## **O R D E R** The accused in S.T.No.1278/2010 on the file of the Judicial First Class Magistrate Court-II, Kollam is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the second respondent/complainant, against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.6 lakhs and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonoured for the reason funds insufficient vide Exts.P2 and P6 dishonour memos issued by the drawee bank and collecting bank respectively. The complainant issued Ext.P3 notice vide Ext.P4 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. But he had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint. 3. When the revision petitioner appeared before the Crl.R.P.No.1767 of 2014 2 court below, particulars of offence 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 P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had filed a statement stating that there was no transaction between the complainant and the revision petitioner. In fact, the son of the complainant was having some business transaction with the revision petitioner in gulf and some amount was due and in order to get that amount, cheque was obtained and later the amount was paid and the cheque was not returned and the entire transaction had taken place at Coimbatore and not at Kollam and that the court has no jurisdiction to entertain the complaint and no offence under Section 138 is attracted. Except marking of Ext.D1 letter through PW1, no other evidence was adduced on his side to prove the case. After considering the evidence, the court below found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him Crl.R.P.No.1767 of 2014 3 to undergo simple imprisonment for 15 days and also to pay the cheque amount of Rs.6 lakhs with 9% interest from the date of complaint as fine till payment with default sentence of imprisonment for 30 days. It is further ordered that fine amount if realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.No.56/2013 before the Sessions Court, Kollam which was made over to Third Additional Sessions Court, Kollam for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the sentence of fine and direction to pay compensation but reduced the substantive sentence to imprisonment till the rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Heard the counsel for the revision petitioner, counsel for the second respondent and the learned Public Prosecutor. 5. The counsel for the revision petitioner submitted that Ext.D1 letter will go to show that no transaction had taken place within the jurisdiction of Kollam court and in fact, the letter will show that it was executed from 4 Crl.R.P.No.1767 of 2014 Coimbatore. Further no transaction had taken place within the jurisdiction of Kollam court. But the case of the complaint was that if the entire transaction has taken place within the jurisdiction of Kollam court and that shows that he had not come to the court with clean hands. Since the transaction has taken place within the jurisdiction of Coimbatore and the cheque was issued from Coimbatore bank, the court has no jurisdiction in view of the dictum laid in **Dashrath** ## **Rupsingh Rathod v. State of Maharashtra & another** (2014 (3) KHC 362 (SC). So the court below has not appreciated that evidence properly and went wrong for convicting the revision petitioner for the offence alleged. Further the sentence imposed is harsh. 6. On the other hand, the counsel for the second respondent argued that though he admitted Ext.D1, he had categorically stated that the writing as Coimbatore with date 29.4.2008 was subsequently added and it was not issued as claimed. Further, even in that letter, he had admitted that he had issued the cheque in discharge of the liability and he had no case that the amount was paid. So the courts below were perfectly justified in convicting the revision petitioner for the offence alleged and the concurrent findings of the 5 Crl.R.P.No.1767 of 2014 courts below on facts do not call for any interference. 7. The case of the complainant in the complaint was that the revision petitioner issued Ext.P1 cheque in discharge of his liability of Rs. 6 lakhs obtained from him. The case of the revision petitioner was that there was no money transaction between the complainant and the revision petitioner. In fact there was some transaction between the son of the complainant and the revision petitioner in gulf country and there was some amount due in that transaction for which the complainant had come to Coimbatore and obtained the cheque by threat and in fact no transaction as alleged by the complainant had happened. In order to prove the case of the complainant, complainant himself was examined as PW1 and he deposed in support of his case. He had admitted that Ext.D1 letter said to have been executed by him in favour of the revision petitioner acknowledging the receipt of cheque for Rs. Six lakhs in full and final settlement of claims between them. He only denied the entries written as Coimbatore and the date at the top of the letter. Once contents of the letter with the place was denied, then burden is on the revision petitioner to prove this fact. But he did not adduce any evidence to prove that letter Crl.R.P.No.1767 of 2014 6 was executed from Coimbatore and mere mentioning of the place as Coimbatore at the top of the letter when the genuineness of which has been disputed by the complainant is not sufficient to prove that amount was paid from him and the entire transaction had taken place from Coimbatore as claimed by him. Even assuming that his case is admitted, he had acknowledged his liability of payment of Rs.6 lakhs and in discharge of that liability, the cheque was issued. It is true that cheque was issued from Uco Bank, Coimbatore branch. But it was presented in a branch at Kollam and notice was issued from that place and it was on that basis that the complaint was filed before Judicial First Class Magistrate Court-II, Kollam. It is true that in **Dashrath Rupsingh Rathod's Case** (cited supra), the Hon'ble Supreme Court has held that the court within whose jurisdiction the drawee bank is situated alone will get jurisdiction to entertain a complaint under Section 138 of the Act and it will be applicable only prospectively and in case where evidence has already been taken, the court in which the cases were filed can proceed with. So in this case trial was completed and appeal was over and only at the time when revision was pending, the decision has come. So under Crl.R.P.No.1767 of 2014 7 the circumstances, the dictum in the above decision relied on is not as such applicable to the facts of the case. Since he had acknowledged the liability and issued the cheque in favoaur of the complainant evidenced by Ext.D1, then if the ingredients of the offence are proved, then the complaint under section 138 of the Act against the revision petitioner is maintainable. 8. The revision petitioner had a case that he had not received any notice. He had no case that he had paid the amount after the receipt of the notice. Once it is proved by the complaint that the revision petitioner had not paid the amount after the receipt of the notice, then the offence under section 138 is complete. So under the circumstances, the courts below were perfectly justified in convicting the revision petitioner for the offence under section 138 of the Act and the findings do not call for any interference. 9. As regards the sentence is concerned, the trial court had sentenced him to undergo simple imprisonment for 15 days and also to pay fine of Rs. 6 lakhs with 9% interest from the date of the complaint till payment with default sentence of 30 days imprisonment. It is further ordered that if amount is recovered, the same be given to the complainant 8 Crl.R.P.No.1767 of 2014 as compensation under section 357(1)(b) of the Code wrongly shown as section 357 (3) of the Code. But the appellate court had confirmed the sentence of fine and direction to pay compensation but reduced the substantive sentence of imprisonment till the rising of court. It is true that the Hon'ble Supreme Court has held that the complainant is entitled to realize the amount with 9% interest but that can be used only for the purpose of quantifying fine to be imposed. Further in the decision reported in **Somnath Sarkar v. Utpal Basu Mallick** (2013 (4) KLT 350(SC), the Hon'ble the Supreme Court has held that there is no provision for payment of compensation under section 138 of the Act and double the cheque amount can be imposed as fine and out of fine compensation can be paid. So considering this aspect this Court feels that fine can be quantified as Rs.6,75,000/- and that can be directed to be paid as compensation to the complainant. So sentence is modified as follows: The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay fine of Rs.6,75,000/- in default to undergo simple imprisonment for two months. If the amount is realized, the same be paid to Crl.R.P.No.1767 of 2014 9 the complainant as compensation under Section 357(1)(b) of the Code. Considering the amount involved, this Court feels that some time can be granted to the revision petitioner to pay the amount. So the revision petitioner is granted time till 17.6.2015 to pay the amount. Till then, execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly and produces proof of payment before the court below and the complainant appears before the court below and acknowledges the same, then the lower court is directed to treat the same as substantial compliance of payment of compensation out of fine as directed by this Court and permit the revision petitioner to serve sentence of imprisonment till the rising of court as provided in **Beena v. Balakrishnan Nair & another** (2010 (2) KHC 851) and **Sivankutty v. John Thomas & another** (2012 (4) KLT 21) . With the above modification of the sentence alone, the revision petition is allowed in part and disposed of accordingly. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.1767 of 2014 10