## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN**
**TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933**
**Crl.Rev.Pet.No. 1867 of 2011 ( ) -------------------------------CRA.105/2010 of D.C. & SESSIONS & MACT,KASARAGOD ST.1454/2008 of J.M.F.C.-II,HOSDRUG**
**REVISION PETITIONER(S)/APPELLANT/ACCUSED:**
**-----------------------------------------**
**MUHAMMED SHAREEF, S/O. LATE ABDUL RAHIMAN HAJI AGED 40 YEARS, RESIDING AT MARHABA MANZIL PALLIKKARA VILLAGE, HOSDURG TALUK, BAKEL PO KASARAGOD DISTRICT**
**BY ADV. SRI.T.MADHU**
**RESPONDENT/ COMPLAINANT(S)& STATE:**
**-----------------------------------**
- **1 K. HAMSA, AGED 54 YEARS, S/O. SHAIKU MASTER BAKEL HOUSE, PALLIKKARA PO, PALLIKKARE VILLAGE HOSDURG TALUK, KASARAGOD DISTRICT -671316**
- **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31**
**BY ADV. SRI.M.V.AMARESAN**
**BY ADV. SRI.V.N.RAMESAN NAMBISAN BY PUBLIC PROSECUTOR, SRI.SREEJITH V.S.**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-03-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
das
## **N.K. BALAKRISHNAN, J.**
## **=================**
## **Crl.R.P. No. 1867 of 2012**
## **========================== Dated this the 20[th ] day of March, 2012**
## **ORDER**
The petitioner challenges the concurrent verdict of conviction in a case filed under Sec.138 of N.I. Act. He was sentenced to undergo imprisonment till the rising of the court and to pay Rs.4,00,000/- as compensation to the complainant.
2. Ext.P2, is the cheque dated 23.06.2008 is for Rs.4,00,000/-. The case of the complainant is that the Tipper Lorry bearing no. KL 14-E 4888 belonged to him. There was was an agreement between the complainant and the accused as per which lorry was given to the accused to use the same on condition that the petitioner was to pay Rs.25,000/- per month. It was agreed to be used for a period of one year. The learned counsel for the complainant submits that admittedly the lorry was used by the accused for a period of 14 months. That is even two months beyond
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the period covered by the agreement. According to the complainant, the agreement was that after the expiry of one year the accused was to return the lorry with new tyres. The amount which was agreed to be paid at the rate of Rs.25,000/- was not paid. New tyres were also not provided. Therefore the complainant took possession of the vehicle. It is also the case that there was a mediation as per which the petitioner agreed to pay Rs.4,00,000/- towards the compensation amount. For that purpose Ext.P2 cheque was issued. Ext.P1 is the agreement stated to have been entered into between the complainant and the accused.
3. All the statutory formalities were complied with for filing the complaint. The learned counsel for the petitioner submits that there was no legal evidence to show that any amount was due from the petitioner to the complainant. It is further argued that it is highly unbelievable that the complainant would receive a cheque for Rs.4,00,000/- especially when the complaint voiced by
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the complainant is that the accused did not pay any amount to the complainant for having used the lorry for the period as aforesaid. It was also contented that, in fact, there was an agreement between the petitioner and the complainant that the petitioner was to pay the instalments due as per Hire Purchase Agreement and the amount payable to the complainant was, in fact, paid by the petitioner. But no evidence worth convincing was produced by the petitioner to support that contention. There is no evidence to show that any such agreement was there between the complainant and the accused.
4. The learned counsel for the petitioner submits that there is no legal evidence to prove the execution of the Ext.P1 agreement or Ext.P2 cheque. But in this connection, the complainant relies upon the evidence of PW2 the document writer who testified before the court that the agreement was signed by the complainant and the accused in her presence. Though, there was incisive cross-
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examination, her evidence remains unshaken. Therefore, the courts below were perfectly justified in relying upon that evidence. The evidence so given by PW2, supported the evidence given by PW1 regarding the execution of Exts.P1 and P2. It was found that the lorry was, in fact, used by the accused for a period of 14 months as contented by the complainant. There is no document to show that any amount was paid by the accused to the complainant as the monthly charges payable by him nor was any evidence adduced to show that he had provided the new tyres or its value thereof to the complainant. The case put forward by the accused is found to be devoid of any merit.
5. Lastly, it is submitted by the learned counsel for the petitioner that the accused was not examined under Sec.313(1)(b) of Cr.P.C. but the learned counsel for the complainant/respondent would pointed out that the accused was allowed to be represented by his counsel under Sec.205 of Cr.P.C. Sec.313(1)(b) of the Code reads:
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313. **Power to examine the accused** - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court -
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case :
provided that in a summons - case; where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
6. The learned counsel for the petitioner cited decision of the Apex court in **Keya Mukherjee v. Magma Leasing Limited** 2008 (2) KLT 327 (SC). But the facts dealt with therein are not identical to the facts situated in this case. There, the apex court has given the guidelines or procedures to be followed while granting exemption under Sec.205 of Cr.P.C. It was held by the apex court in **Keya**
## **Mukherjee** 's case :
“26. If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency, the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters:
(a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving
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such answers.
(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning.
(c) An undertaking that he would not raise any grievance on that score at any stage of the case.
27. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit, it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under S.313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire (as a matter of precaution the court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for an answer). If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning. The court has also to ensure that the imaginative response of the counsel is intended to be availed to be a substitute for taking statement of accused.”
7. It was argued by the learned counsel for the petitioner that in a summons case, whether the accused can be exempted from personal examination under Sec.313(1) (b) Cr.P.C., is judicial discretion to be exercised by the court
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since the word 'may' occuring under the proviso clearly indicates that the Magistrate may or may not allow the prayer of the accused for exemption from personal examination under Sec.313(1)(b) of Cr.P.C.
8. But there was no request on the part of the accused that his counsel's statement has to be recorded under Sec.313 of Cr.P.C. The learned counsel for the complainant submits that the honourable Apex Court has not held that if the examination was dispensed with by the trial court exercising its discretion under the proviso to Sec.313(1)(b)of Cr.P.C., the conviction is vitiated.
9. Here, actually the accused secured the order allowing him to be represented by his counsel under Sec.205 of Cr.P.C. In the light of the proviso to Sec.313(1) (b), the learned Magistrate has dispensed with the examination under Sec.313 of Cr.P.C. No contention was raised by him before the trial court or before the appellate court as to what was the prejudice caused to him due to the
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non-examination of the accused under Sec.313 Cr.P.C. If as a matter of fact, any such contention was urged before the appellate court, then the appellate court could have, if at all necessary, allowed the examination of the accused at the appellate stage as was held in **Janak Yadav v. State of Bihar** (1999) 9 SCC 125. No contention was raised by the accused before the appellate court regarding the nonexamination of the accused. The petitioner also could not state what was the sort of prejudice that was caused to him. Therefore, the contention that the conviction is vitiated due to non examination of the accused under Sec.313(1)(b) of Cr.P.C must also fault to the ground.
10. In view of what is stated above, the verdict of conviction concurrently entered by the courts below is only to be confirmed. The petitioner was sentenced to undergo imprisonment till the rising of the court and to pay Rs.4,00,000/- (Rupees four lakhs only) as compensation and in default to undergo S.I for four months. I find no reason to
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interfere with the same.
11. In the result, this criminal revision petition is disposed of as stated below.
The conviction and sentence passed against the petitioner are confirmed. The petitioner is granted three months time to pay the amount of compensation.
N.K. BALAKRISHNAN, JUDGE
das
