Nobby K. P v. Aleyamma T.G and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** **Crl.Rev.Pet.No.104 OF 2020** **AGAINST THE JUDGMENT IN CRA 94/2017 DATED 14-08-2019 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, KOTTAYAM** **AND CHALLENGING THE JUDGMENT IN ST 71/2016 DATED 29-04-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, ETTUMANUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **NOBBY.K.P AGED 43 YEARS S/O.LATE MR.ISMAIL, ORANGE JUICE CAFE, NEAR MUNICIPALITY BUILDING, KOTTAYAM, PIN-686001.** **BY ADV. SRI.JOSSY KURIAN** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 ALEYAMMA.T.G., W/O.P.L.ABRAHAM, THOPPILPEEDIKAYIL HOUSE, KUMARANELLOOR.P.O., KOTTAYAM, PIN-686016. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.C.S.MANILAL R1 BY ADV. SRI.S.NIDHEESH SRI.AJITH MURALI PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31.01.2020, THE COURT ON 06.02.2020 PASSED THE FOLLOWING:** Crl.R.P.No.104/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.104 of 2020 ---------------------------------------------Dated this the 6[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.71/2016 on the file of the Court of the Judicial First Class Magistrate-II, Ettumanoor. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced the petitioner to simple imprisonment for a period of three months and to pay a fine of Rs.2,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was realised, it shall be given as compensation to the complainant. 3. The petitioner filed Crl.A.No.94/2017 before the Court Crl.R.P.No.104/2020 3 of Session, Kottayam challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as sentence against the petitioner and dismissed the appeal. 4. Aggrieved by the concurrent findings of guilty, conviction and sentence passed against him by the courts below, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The accused is a neighbour of the complainant. On 02.07.2014, the accused borrowed Rs.2,00,000/- from the complainant. In discharge of that liability, the accused executed and issued a cheque dated 18.06.2015 for Rs.2,00,000/- to the complainant. When the complainant presented the cheque in the bank, it was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He sent a reply raising false contentions. He did not pay the amount of the Crl.R.P.No.104/2020 4 cheque. 7. During the trial of the case, the complainant got herself examined as PW1 and Exts.P1 to P6 documents were marked on her side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence that the accused borrowed an amount of Rs.2,00,000/from her and in discharge of that liability, the accused executed and issued Ext.P1 cheque for Rs.2,00,000/- in her favour. Nothing was brought out in the cross-examination of PW1 to disbelieve her evidence regarding the borrowing of the amount by the accused and also the issuance of the cheque by the accused to the complainant in discharge of that liability. 9. The plea of the accused was that, out of the amount borrowed by him from the complainant, he repaid an amount of Rs.1,05,000/- in instalments and he had given a signed blank cheque to the complainant and that the complainant misused the aforesaid cheque by filling it up and filed the case. No evidence was adduced by the accused to prove the aforesaid plea. No evidence was adduced by him to prove repayment of an amount Crl.R.P.No.104/2020 5 of Rs.1,05,000/- to the complainant. 10. The plea of the accused and the evidence of PW1 have been considered by the trial court in its judgment stating as follows: _“The contention of the accused is that out of the amount borrowed from the complainant, the accused repaid Rs.1,05,000/- in instalments. The blank signed cheque given in favour of the complainant was misused and filled up without the consent and knowledge of the accused. In order to prove this contention, the accused had not adduced any evidence. On the other hand the evidence of the PW1 shows that after obtaining two lakh rupees from her the accused executed and issued the Ext.P1 cheque for discharging the liability. There is nothing on record to disbelieve the PW1.”_ 11. I find no illegality or impropriety or perversity in the appreciation of evidence by the trial court. 12. Learned counsel for the petitioner contended that the complainant failed to prove the source of the money which was allegedly advanced to the accused. PW1 gave evidence that the amount was withdrawn from the bank account of her daughter Crl.R.P.No.104/2020 6 and it was given to the accused. Of course, the complainant did not produce any document showing withdrawal of amount from the bank account of her daughter. Absence of documentary evidence to prove the source of money is not a sufficient ground to disbelieve the evidence of PW1. 13. Absence of documentary evidence to show the source of funds with the complainant to advance the loan is not a relevant consideration in view of the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the Act (See **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876).** The complainant need not prove the debt as in a suit for recovery of money (See **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287)** . 14. The counsel engaged by the petitioner had not appeared before the appellate court and argued the appeal. Therefore, the appeal was disposed of by the appellate court by perusing the records of the case and the judgment of the trial court. Learned counsel for the petitioner contended that it was improper on the part of the appellate court to dispose of the Crl.R.P.No.104/2020 7 appeal without hearing the counsel for the appellant. There is no merit in this contention. In **Bani Singh v. State of U.P : AIR 1996 SC 2439** , a three Judge Bench of the Supreme Court has held as follows: _“The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court”._ 15. In the aforesaid circumstances, I find no sufficient ground to interfere with the conviction entered against the petitioner by the courts below, in exercise of the revisional jurisdiction of this Court. 16. The trial court imposed a sentence of simple imprisonment for a period of three months and fine of Rs.2,00,000/- on the petitioner/accused. The appellate court did not modify the sentence. Considering the facts and circumstances of the case, I find that it is not necessary to impose any substantive sentence of imprisonment on the Crl.R.P.No.104/2020 8 petitioner/accused. 17. Consequently, the revision petition is allowed in part. Conviction of the petitioner/accused by the trial court for the offence punishable under Section 138 of the Act, as affirmed by the appellate court, is confirmed. The sentence imposed on the petitioner/accused by the trial court, which stands affirmed by the appellate court, is set aside. In supersession of the sentence imposed on the petitioner/accused by the trial court, he is sentenced to pay a fine of Rs.2,20,000/- (Rupees two lakhs twenty thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of one month. Needless to state that, if the fine amount is realised, it shall be paid to the complainant as compensation. The petitioner/accused is granted a period of four months from today to remit the fine amount in the trial court. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge