Nisha Joseph v. Gurunadhan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933** **Crl.Rev.Pet.No. 2633 of 2004(D)** **-------------------------------------------[CRL.A.NO.71/2000 OF ADDITIONAL SESSIONS COURT (ADHOC-II), THODUPUZHA, DATED 29/04/2004 CC.NO.81/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, DEVIKULAM DTD. 19/04/2000]** **....................** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------------------------------------** **SMT. NISHA JOSEPH, D/O. JOSEPH, PUTHENPARAMBIL HOUSE, MUNNAR, KASARAGOD VILLAGE.** **BY ADV. SRI.SOORAJ .T.ELANJICKAL.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **-----------------------------------------------------------------------------------** **1. GURUNADHAN, S/O. NAGAPPAN, PROPRIETOR, SHANMUGA FINANCE, MUNNAR.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.V.PHILIP MATHEWS, R2 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **prv.** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.R.P.No.2633 of 2004 --------------------------------Dated this the 11[th] day of August 2011** ## **O R D E R** The accused who was concurrently found guilty of the offence punishable under Sec.138 of the N.I.Act is the revision petitioner. She was convicted and sentenced to undergo S.I. for one year and to pay Rs.3,00,000/- as compensation to the complainant and in default to undergo S.I. for six months. The appeal filed by her was dismissed by the learned Addl. Sessions Judge (Adhoc-II), Thodupuzha. 2. The case of the complainant is that the accused was the Manager of M/s.Shanmugha Finance and she was entrusted with all account books, money and gold ornaments. She was working in that financial institution from 30.6.1994 on wards. It was alleged that she committed breach of trust and misappropriation of valuables and money, forging registers and other records etc. According to the complainant, she committed misappropriation and criminal Crl.R.P.No.2633 of 2004 -: 2 :- breach of trust. There was a mediation with regard to the same in which she agreed to pay Rs.9,00,000/- to the complainant. In partial discharge of that liability Ext.P1 cheque dated 15.12.1997 was issued by the petitioner/accused. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds in the account of the petitioner. Notice as required under the proviso (b) to Sec.138 of the N.I.Act was sent. Reply was sent by her denying the liability. Hence the complaint was filed. 3. On the side of the complainant PWs. 1 to 4 were examined and Exts.P1 to P7 were marked. Exts.D1 to D4 were marked on the side of the accused. 4. Learned Magistrate found that Ext.P1 was issued by the accused in partial discharge of the liability of Rs.3,00,000/- and that all the statutory formalities were complied with and thus she was convicted and sentenced as mentioned above. The learned Sessions Judge re-appreciated the evidence and confirmed the conviction and sentence passed by the learned Magistrate. Crl.R.P.No.2633 of 2004 -: 3 :- 5. The learned counsel for the accused/revision petitioner would submit that a reading of the complaint itself would make it clear that Ext.P1 cheque was issued by the accused to avoid the criminal prosecution based on the alleged criminal breach of trust and misappropriation and since the consideration, even according to the complainant is tainted with illegality, the contract is unlawful and as such it has to be found that the amount alleged to be due from the accused is not a legally enforceable debt or liability and as such the prosecution under Sec.138 of the N.I.Act cannot be sustained. In support of his submission, the learned counsel has relied on **Elamma** v. **Fr. Joseph Aranhani Olikkan** [2003 (2) KLT 536]. It was held in the aforesaid case :- “The lower appellate court has held that abstaining from launching criminal prosecution against the third defendant is the consideration for Ext.A-1. Ext.A-1 does not state that the consideration for the agreement was abstaining from prosecution by Joseph and other. It is stated by the lower appellate court that the admitted case of the parties is that the first defendant put the signature on their assurance of not launching criminal prosecution against the third defendant. In the written statement of Crl.R.P.No.2633 of 2004 ## -: 4 :- the first defendant it is stated that some persons came to see her with Kalarikkal Joseph and threatened to send the third defendant to jail in a criminal case and if she wants it to be avoided she must undertake to pay the amount if it is not pad by the third defendant. She was thus forced to sign the papers brought by them. The question is whether it is a good consideration.” According to the learned counsel, in this case also the cheque was stated to have been issued by the accused for abstaining from launching criminal prosecution. In the complaint it was stated that believing the words of the accused, the complainant did not file a case against the accused for prosecuting her for the offence of criminal breach of trust, misappropriation etc. The learned counsel submits that even if it is accepted that it was not stated in so many words that the complainant had promised that he will abstain from initiating criminal prosecution it can be discerned from the reading of the whole paragraph that cheques were given by the accused for not launching the criminal prosecution against her for the offence of criminal breach of trust or misappropriation etc. Therefore, according to the learned Crl.R.P.No.2633 of 2004 -: 5 :- counsel, the consideration is unlawful and the contract is tainted with illegality. 6. This submission made by the learned counsel for the revision petitioner is stoutly resisted by the learned counsel for the complainant and would submit that it was not at all stated in Ext.P8 agreement or in the complaint that there was any such agreement nor was any promise made by the complainant that if the money due to the complainant was paid he will abstain from initiating the prosecution. The learned counsel would submit that the cheque was issued only in partial discharge of the liability. That liability, of course, arose as she did not properly account for the money she had collected. That does not mean that she agreed to pay back the money only to avoid criminal prosecution, the learned counsel submits. In the complaint it was stated that the accused agreed to pay Rs.9,00,000/- she had taken and misappropriated and requested the complainant not to initiate criminal proceedings. It was further stated that after deliberation with accused the complainant did not initiate Crl.R.P.No.2633 of 2004 -: 6 :- criminal proceedings against her. It is true that had the money been paid by the accused to the complainant, perhaps the complainant would have abstained from initiating criminal prosecution against the accused for the offence of criminal breach of trust, misappropriation etc. But it was not stated in Ext.P8 agreement or in the complaint that complainant had promised that he will not initiate criminal prosecution or that the cheques were issued by the accused to avoid the criminal prosecution for the offence of criminal breach of trust or misappropriation. Since there was no such agreement or contract, it cannot be said that it is an illegal contract and the consideration therefore would not be unlawful or not legally enforceable. If in fact the consideration is unlawful, certainly it can be said that the prosecution under Sec.138 cannot be sustained because for prosecuting the accused cheque must have been issued in discharge of a legally enforceable debt/liability. The averments in the complaint do not show that the complainant had agreed not to initiate prosecution or that the cheques were issued only to avoid criminal Crl.R.P.No.2633 of 2004 -: 7 :- prosecution for the offence of criminal breach of trust. Therefore, the argument strenuously advanced by Sri.Sooraj, the learned counsel for the accused cannot come to the help of the accused. In short, there was no illegal contract nor is the consideration unlawful making it unenforceable under law. 7. The evidence regarding execution of the cheque adduced by the complainant was accepted by the learned Magistrate. After thorough re-appreciation of the same it was confirmed by the learned Sessions Judge. Therefore, that finding requires no interference in this revision. Since the statutory formalities are seen complied with, the conviction is only to be confirmed. Learned Magistrate sentenced the petitioner to undergo S.I. for one year and to pay the cheque amount as compensation. Considering all the aspects, the sentence can be modified. In the result, this revision is disposed of as stated below :- The conviction is confirmed. In supersession of the sentence awarded by the court below, the accused/revision Crl.R.P.No.2633 of 2004 -: 8 :- petitioner is sentenced to undergo imprisonment till the rising of the court and to pay Rs.3,00,000/- as compensation to PW1, the complainant. The accused/revision petitioner is granted three months time to pay the compensation. She will appear before J.F.C.M., Devikulam on **11.11.2011** to receive the sentence of imprisonment till the rising of the court and to pay the compensation amount. **N.K.BALAKRISHNAN, JUDGE.** Jvt