M.V. Raghavan v. A.P. Abdulla and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939** **Crl.Rev.Pet.No. 3244 of 2004 (A) --------------------------------CRA 406/1999 OF SESSIONS COURT, THALASSERY CC 1219/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TALIPARAMBA -------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------** **M.V.RAGHAVAN, AGED 50 YEARS, S/O. KANNAN, NEAR THRICHAMBARAM TEMPLE, TALIPARAMBA.** **BY ADVS.SRI.M.SASINDRAN SRI.SREEJITH S.NAIR** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **1. A.P.ABDULLA, S/O. MUHAMMED KUNHI MOULAVI SYED NAGAR, TALIPARAMBA.** **2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.No. 3244 of 2004 ================== Dated this the 20[th] day of October, 2017 **O R D E R** The petitioner herein is arrayed sole accused for offence punishable under Sec. 138 of the Negotiable Instruments Act in C.C.No.1219/1997 on the file of the Judicial First Class Magistrate's Court, Thaliparamba, instituted on the basis of a complaint filed by the 1[st] respondent herein. Ext.P-1 dishonoured cheque dated issued in June, 1997 is for Rs. 49,000/-. The trial court as per the impugned judgment rendered on 16.11.1999 had convicted the petitioner for the abovesaid offence and has sentenced him to undergo imprisonment till rising of the court and has ordered to pay compensation of Rs. 50,000/- to the complainant under Sec. 357(3) of the Cr.P.C.. In default thereof, to undergo simple imprisonment for 3 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No. 406/1999 before the Sessions Court, Thalassery. The appellate court concerned as per the impugned judgment rendered on 13.8.2004 has dismissed the said appeal and has thereby confirmed the conviction and sentence imposed on the petitioner. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. The revision petition was filed as early as on 13.12.2004. This Crl.R.P.3244/04 - : 2 :- Court as per order dated 14.12.2004 had admitted the revision petition and had ordered notice to respondents and also passed interim order dated 14.12.2004 on Crl.M.P.No. 14806/2004 in this revision petition directing suspension of the impugned sentence in this case on the petitioner executing bond for Rs. 15,000/- and on furnishing two solvent sureties for the like sum each to the satisfaction of the trial court with a further condition that the petitioner should deposit an amount of Rs.10,000/within four months therefrom. 3. The Registry has endorsed that notice has been sent on R-1 (complainant) on 20.12.2004 with hearing dated 18.1.2005 through the Circle Inspector of Police, Thaliparamba. Later, it has been endorsed by the Registry that the notice sent to R-1 has been returned with the endorsement, “ _not known_ ”. Still further, as per the endorsement dated 8.9.2015 it is seen that notice was again taken out to R-1 by speed post with hearing date 22.9.2016. The said notice has been returned unserved stating “ _not known_ ” and thus service could not be completed. Thereafter, the petitioner has not cared to take any steps to ensure proper service of notice on R-1 and so service of notice on R-1 has not so far been completed, even though the learned Prosecutor has taken notice for R-2 State. In these circumstances, this Court could have dismissed this revision petition for non prosecution solely on the ground that the petitioner has not taken Crl.R.P.3244/04 - : 3 :- steps to ensure proper service of notice to R-1, who is directly affected party. However, this Court is inclined to consider the merits of the matter. The trial court has intimated the Registry of this Court that till date the petitioner has not deposited the amount of Rs.10,000/- in compliance with this Court's interim order dated 14.12.2004. 4. Heard Sri.M.Sasindran, learned counsel appearing for the revision petitioner (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 5. The brief of the case of the complainant is to the effect that in discharge of a liability of Rs.49,000/- owed by the accused to the complainant, the revision petitioner (accused) had Ext.P-1 cheque in June, 1997, drawn from his account in favour of the complainant. The cheque when presented resulted in dishonour as evident from Exts.P-2 and P-3 bank memos. Thereupon, the complainant caused to send Ext.P-4 statutory demand notice under Sec.138 proviso (b) of the Negotiable Instruments Act calling upon the petitioner (accused) to pay of the amount covered by the dishonoured cheque in question within 15 days from the date of receipt of the notice and the said notice sent by registered post, has been duly served on the accused as per Ext.P-5 and P-6. The petitioner has not sent any reply thereto and since the amount was not paid, after complying with the procedural formalities, the complainant has initiated Crl.R.P.3244/04 - : 4 :- the abovesaid complaint, which has led to the conduct of the trial court. 6. During the trial, the prosecution has examined P.W-1 (complainant) and P.W-2 (Senior Manager of the Federal Bank) and has marked Exts.P-1 to P-7 documents. The defence has not adduced any oral or documentary evidence. 7. In the evidence, P.W-1 has deposed broadly in tune with the contents of his complaint regarding the transactions between the parties which led to the liability as well as the factual aspects relating to the issuance of the cheque, etc. During the cross examination of P.W-1, the main defence projected by the accused was to the effect that the only transaction between the parties was prior one in which the accused had only taken a personal loan of Rs.10,000/- from the complainant and at that time, in security thereof, a blank signed cheque had been given to the complainant and that later, full amount of Rs.10,000/- was paid by the accused to the complainant and that still the complainant did not return back the blank singed cheque and that he has misused the same in the present complaint proceedings and that the accused has never taken personal loan of Rs.49,000/- as alleged in the present complaint proceedings, etc. 8. Both the courts below have found that other than making such a suggestion, no clinching circumstances could be brought out in evidence Crl.R.P.3244/04 - : 5 :- or in the available materials on record to even remotely sustain the factual basis of such a defence suggestion. Going by the very nature of the defence case set up by the accused that a blank signed cheque has been given by him to the complainant, it can be seen that there is no serious dispute by the accused that the signature in Ext.P-1 cheque belongs to him and that the said cheque has been drawn from his account. Therefore, going by the legal principles well settled by the Apex Court in a catena of decisions as in _**Rangappa v. Sri Mohan**_ , reported in (2010) 11 SCC 441, _**T.Vasanthakumar v. Vijayakumari**_ , reported in (2015) 8 SCC 378, etc., the complainant is entitled to draw the benefit of statutory presumption under Sec. 118(a) and Sec. 139 of the Negotiable Instruments Act in the facts and circumstances of this case. The only question to be examined is as to whether the accused has established a probable and credible defence case so as to effectively rebut the statutory presumption. Both the courts belows have found that other than making the abovesaid suggestion, no clinching circumstances have been brought out in evidence and that therefore, the courts below cannot be blamed for having taken the view that the accused has not been successful in demolishing the statutory presumption in the facts and circumstances of this case. In the light of these aspects, both the courts below have come to the considered concurrent finding that the petitioner is liable to be convicted for the Crl.R.P.3244/04 - : 6 :- abovesaid offence under Sec. 138 of the Negotiable Instruments Act. The petitioner has not been able to establish before this Court that the said considered findings of facts rendered by the courts below convicting the petitioner are in any manner vitiated by illegality or impropriety, etc. Under these circumstances, this Court is not in a position to interfere with the findings of conviction entered against the petitioner, by taking recourse to the revisional powers conferred on this Court. 9. Coming to the sentence in this case, it is seen that the courts below have only imposed imprisonment till rising of the court and to pay Rs.50,000/- as compensation under Sec. 375(3) of the Cr.P.C. with a default sentence clause of 3 months. Admittedly Ext.P-1 cheque amount is for Rs.49,000/-. The execution and dishonour of the cheque is on June 1997 and more than 20 longs years have elapsed after the execution and dishonour of the instant cheque. In many a case, the Apex Court has held in the decisions as in _**Vijayan v. Baby**_ reported in (2012) 1 SCC 260, that the criminal trial courts dealing with offences under Sec.138 of the Negotiable Instruments Act could award interest upto 9% on the cheque amount apart from the amount covered by the cheque. In the instant case, the courts below have rather too liberal in awarding compensation, which is roughly the same as the amount covered by the cheque. Therefore no grounds have been disclosed in this case so as to warrant revisional Crl.R.P.3244/04 - : 7 :- intervention in the said sentence and compensation order. 10. The learned counsel for the petitioner submits that in case this Court is so inclined to uphold the conviction and sentence, then this Court may grant 3 months' time to pay the compensation amount in this case. Taking into consideration the long pendency of the matter and the conduct of the petitioner, this Court is not inclined to grant more than 2 months. ## 11. Accordingly, it is ordered that:- - _(i) The impugned conviction, sentence and compensation amount with the default sentence clause imposed in this case are confirmed._ - _(ii) The petitioner is given 2 months' time to pay the compensation amount._ - _(iii) The petitioner shall personally appear before the trial court at 11 a.m. on any day on or before 6.1.2018 to receive the sentence of imprisonment till rising of the court and to remit the compensation amount of Rs. 50,000/-._ - _(iv) On default to pay the abovesaid amount, he will have to undergo simple imprisonment for 3 months as ordered by the courts below._ - _(v) Until 6.1.2018, all coercive steps for execution of the impugned sentence in this case will stand deferred_ - _(vi) As and when the amounts are so remitted by the petitioner, the trial court will ensure that the said amounts are released to the 1[st] respondent complainant after issuing notice of intimation to that party to receive the said amount._ The Registry will forward copies of this order to the 1[st] respondent (complainant) as well as to the trial court. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge