Najeeb v. Chandran Pillai and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 11TH DAY OF DECEMBER 2014/20TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 2127 of 2014 ()** **---------------------------------------AGAINST THE JUDGMENT IN CC 2214/2007 of J.M.F.C.-II, KOLLAM, DATED 07-02-2011 & AGAINST THE JUDGMENT IN Crl. APPEAL 49/2011 of ADDL. SESSIONS COURT - IV, KOLLAM, DATED 19-09-2014** **REVISION PETITIONER(S):** **-------------------------------------** **NAJEEB, S/O. SULAIMAN KUNJU, MAVINAZHIKAM, PERINAD P.O., KOLLAM.** **BY ADVS.SRI.R.SATHISH KUMAR SMT. T.J.SEEMA** **RESPONDENT(S): ------------------------** **1. CHANDRAN PILLAI, DEVAKI MANDIRAM, KANNIMEL CHERI, KAVANAD P.O., KOLLAM - 691 003.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R2 BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P.No.2127 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 11[th] day of December, 2014 ## **O R D E R** Accused in C.C.No.2214/2007 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 complainant/ first respondent against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’). 2. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of ₹1,00,000/- and in discharge of that liability, the revision petitioner issued Ext.P1 cheque, which when presented was dishonoured for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonour memo, which was intimated to the complainant by his banker vide Ext.P3 intimation letter and the complainant issued Ext.P4 notice vide Ext.P5 postal 2 Crl. R. P.No.2127 of 2014 receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. The revision petitioner 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 court below, the 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 of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he obtained a bus from the complainant on sale and as security for payment of the amount agreed upon, a blank singed cheque was given, but subsequently that transaction failed 3 Crl. R. P.No.2127 of 2014 and the vehicle was returned to the complainant, but he wanted some more amount as damages, as he could not sell the vehicle to some other person. But no evidence was adduced on his side to prove this fact. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for four months and also to pay the cheque amount of 1,00,000/- as compensation to the complainant,₹ in default to undergo simple imprisonment for two months more. Aggrieved by the same, revision petitioner filed Crl.Appeal No.49/2011 before the Sessions Court, Kollam, which was made over to 4[th] Additional Sessions Court, Kollam, for disposal and the same was allowed in part by the Additional Sessions Judge, confirming the order of conviction, but converted the compensation amount to fine with default sentence of two months and reduced the substantive sentence to imprisonment till rising of the court Crl. R. P.No.2127 of 2014 4 and directed to pay fine amount if realised to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Dissatisfied with the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Considering the scope of enquiry and nature of contentions raised by the revision petitioner in the lower court, this court felt that, the revision can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and the Public Prosecutor appearing for the 2[nd] respondent, dispensing with notice to the first respondent in the revision. 5. The counsel for the revision petitioner submitted that, the case of the revision petitioner is more probable than the case of the complainant and the court below has not properly appreciated the evidence and the nature of cross examination of PW1 on the basis of the defence taken by the revision petitioner. He had rebutted 5 Crl. R. P.No.2127 of 2014 the presumption and as such courts below were not justified in convicting him for the offence alleged. 6. The learned Public Prosecutor supported the concurrent findings of the court below on this aspect. 7. The case of the complainant in the complaint was that, accused borrowed a sum of 1,00,000/- and in₹ discharge of that liability he had issued Ext.P1 cheque. The case of the revision petitioner was that, he had no money transaction with the complainant, but he had purchased a bus from the complainant and as security for payment of the amount due on that transaction, he had given a blank signed cheque, but later he could not pay the amount and returned the vehicle, but the complainant wanted more amount as he sustained loss in the transaction and misusing the cheque, the present complaint was filed. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of his case in the complaint. Though he was cross examined 6 Crl. R. P.No.2127 of 2014 at length, nothing was brought out to discredit his evidence, regarding the question of the revision petitioner borrowing the amount and issuing Ext.P1 cheque in discharge of that liability. He had categorically stated that, the cheque was duly signed and delivered in his presence. No evidence was adduced on the side of the revision petitioner to prove his case. Further he did not send any reply to the notice issued by the complainant, when the cheque was dishonoured by demanding the amount as well. That will go to show that, the case of the revision petitioner is not probable or believable. Further, once the complainant had proved the execution and delivery of the cheque, then the statutory presumption under Section 139 of the Act will be attracted and the burden is on the revision petitioner to rebut the same, by adducing cogent evidence or bringing facts from the evidence of the complainant to prove his case by preponderance of probabilities. Nothing of these nature have been done by the revision petitioner. So under the 7 Crl. R. P.No.2127 of 2014 circumstances, the courts below were perfectly justified in coming to the conclusion that, the complainant had proved his case and rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference. 8. As regards the sentence is concerned, though the trial court had sentenced him to undergo simple imprisonment for four months and also to pay the cheque amount of 1,00,000/- as compensation to the complainant₹ and in default to undergo simple imprisonment for two months under Section 357(3) of the Code of Criminal Procedure, and the same was modified by the appellate court relying on the decision of the Hon'ble Supreme Court in **Somanath Sarkar v. Utpal Basu Mallick [2013(4) KLT 350 (S.C.)]** by sentencing the revision petitioner to undergo imprisonment till rising of the court and also to pay a fine of ₹1,00,000/-, in default to undergo simple 8 Crl. R. P.No.2127 of 2014 imprisonment for two months and further directed, if the fine amount is realised to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. So the sentence imposed by the court below cannot be said to be excessive or harsh which requires interference at the hands of the this court. While this court was about to dispose of the case, the counsel for the revision petitioner prayed for six months time. Considering the amount involved, this court felt that, time sought for appears to be reasonable and six months time is granted to the revision petitioner to pay the amount. So the revision petitioner granted time till 11.06.2015 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 to the complainant and produces proof of payment and the complainant appears before the court below and acknowledges the receipt of the same, then court below is directed to treat the same as substantial compliance of 9 Crl. R. P.No.2127 of 2014 payment of compensation out of fine and record the same in the respective registers and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of the court as provided in the decision reported in **(2010 (2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** and permit the revision petitioner to serve substantive sentence of imprisonment till rising of court. With the above direction and observation the revision petition is disposed of. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss