O.G. Janardhanan v. Kanakarajan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **WEDNESDAY, THE 19TH DAY OF NOVEMBER 2014/28TH KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 2161 of 2004 (A)** ## **---------------------------------** **AGAINST THE JUDGMENT IN Crl.Appeal No. 129/2001 of ADDL. SESSIONS COURT (ADHOC), KALPETTA DATED 21-05-2004.** **AGAINST THE JUDGMENT IN CC 763/2001 of J.M.F.C.-II, MANANTHAVADY DATED 30-10-2001.** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------------------------------------** **O.G.JANARDHANAN, S/O.GOVINDAN, ODAKKAL HOUSE, THRISSILERY P.O., KARTIKULAM VIA.** **BY ADV. SRI.CIBI THOMAS.** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **----------------------------------------------------------------** **1. KANAKARAJAN, S/O ANANDASWAMI, NADUKKALATHIL HOUSE, THRISSILERY P.O., KARTIKULAM VIA.** ## **2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR,** ## **HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.R.SURENDRAN. R2 BY PUBLIC PROSECUTOR SMT.MADHU BEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.R.P No.2161 of 2004** **-----------------------------------------------Dated this the 19[th] day of November, 2014.** ## **O R D E R** Revision petitioner is aggrieved by the concurrent findings of guilt under Section 138 of the Negotiable Instruments Act, 1881 ( in short 'the N.I Act'). 2. Short facts, are as follows : The revision petitioner/accused borrowed an amount of Rs.2,18,000/- from the complainant/respondent on 08-12-1999 promising to repay the same on or before 30-01-2000. When the complainant asked for the return of money, he executed Ext.P1 cheque drawn on his account. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds in the account. The complainant caused to issue a statutory notice for which the revision petitioner sent a reply disputing the liability. Thereafter, the complaint was launched. PW1 is the complainant and DW1 is the revision petitioner/accused. Exts.P1 to P7 are the documents marked on **Crl.R.P No.2161 of 2004 2** the side of the complainant. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the complainant/respondent. 4. In a revision of this nature what is to be decided is the legality, correctness or propriety of the concurrent findings of the court below. Learned counsel for the revision petitioner contended that evidence in this case does not show that the accused borrowed any money from the complainant as alleged in the complaint and issued Ext.P1 cheque in discharge of that liability. Learned counsel for the accused further contended that the complainant was not having the financial ability to lend money to a tune of Rs.2,18,000/- as claimed in the complaint. Case of the revision petitioner in the reply notice is that on many occasions he borrowed Rs.62,000/- from the complainant and the amount was returned with exorbitant rate of interest. But when examined as DW1, he deposed that only Rs.30,000/- was borrowed from the This was complainant. incongruity **Crl.R.P No.2161 of 2004 3** considered by the lower appellate court to disbelieve the case of the revision petitioner. It is pertinent to note that there is no document, except Ext.P1 cheque, to show that either Rs.62,000/or Rs.30,000/- was borrowed by the revision petitioner from the complainant and also to show that it was returned by the former to the latter. Learned counsel for the revision petitioner further contended that the parties fought a civil litigation before the Munsiff Court and that was a suit filed by the complainant for specific performance against the accused. That suit ended in dismissal. It is therefore contended by the learned counsel for the revision petitioner that the testimony of the complainant as PW1 cannot be believed since he deposed that there was no other transaction during the material time between the parties. However, no document is produced to establish the filing of a suit. 5. The Apex Court in _**Premshanker v. I.G of Police (2002**_ _**(3) K.L.T 389)**_ has held that if a criminal case and a civil **Crl.R.P No.2161 of 2004 4** proceedings are for the same cause, judgment of the civil court are would be relevant if conditions in any of Sections 40 to 43 satisfied, but it cannot be said that the same would be conclusive, except as provided in Section 41 of the Evidence Act. In the absence of any material on record to find that there was a civil litigation in respect of the same transaction between the same parties, I am unable to accept the argument of the learned counsel for the revision petitioner. 6. Learned counsel for the revision petitioner relied on a decision of the Apex Court in _**T.Nagappa v. Y.R.Muralidhar (A.I.R 2008 SC 2010)**_ and a decision of this Court in _**Santhi v. Mary Sherly (2011(3) K.L.T 273)**_ to contend a proposition that admission of signature in a cheque leaf alone will not constitute admission of execution of the cheque. In this case, when PW1 was cross examined, it was elicited that the accused brought the cheque after filling it up and then signed on it in front of the complainant. Case that the accused handed over a signed blank **Crl.R.P No.2161 of 2004 5** cheque to the complainant is not established by any reliable evidence. Therefore, the principle in the decisions cannot be applied to this case. 7. On an over all assessment of the facts and circumstance of the case, I find no illegality or incorrectness in the finding of the courts below that the revision petitioner is guilty of an offence under Section 138 of the N.I Act. However, there is some force in the argument of the learned counsel for the revision petitioner that the lower appellate court committed an illegality in the matter of sentence. The lower appellate court after convicting the appellant imposed a fine of Rs.2,000/- as punishment and a default sentence is also prescribed. In addition to that, the revision petitioner is directed to pay compensation of Rs.2,18,000/- and a further default sentence is also prescribed. This is clearly in violation of the provisions in Section 357 Cr.P.C. Section 357(1) Cr.P.C says that if fine forms part of the sentence, compensation can be directed to be paid only out of **Crl.R.P No.2161 of 2004 6** the fine amount. If compensation simplicitor is to be awarded in a case, there must be a substantive sentence of imprisonment awarded by the court. Both these conditions have been violated by the appellate court. 8. Learned counsel for the complainant submitted that the illegality in the matter of sentence passed by the lower appellate court can be rectified in this proceedings. This Court's revisional powers in Section 401 Cr.P.C enables this Court to correct any illegality that has come to the notice of this Court. Per contra, the learned counsel for the revision petitioner contended that the sentence imposed by the court below cannot be enhanced in a revision filed by the accused. 9. The Division Bench of this Court in _**Ishaque v. Raveendran Thampan (2010 (2) KLT 1)**_ after an elaborate consideration of the revisional powers held as follows : _“The revisional jurisdiction is the jurisdiction of correction and_ **Crl.R.P No.2161 of 2004 7** _superintendence. Wherever injustice/ impropriety results from the procedure adopted by the subordinate courts, the revisional court can intervene to invoke its revisional powers and to ensure that justice is done. In fact, the revisional powers of supervision and correction are available to the superior courts i.e., the Court of Session and the High Court to be invoked in the interests of justice. Even an application by the party is not necessary to justify invocation of the revisional jurisdiction. By filing revision petition the party is only bringing to the notice of the court the need to invoke its revisional jurisdiction of superintendence and correction. Of course, we have the provisions of S.401(4) of the Code which mandates that the powers of revision shall not be invoked at the instance of a person who has a right of appeal and who has not invoked such right of appeal. That stipulation notwithstanding, the_ **Crl.R.P No.2161 of 2004 8** _revisional powers are the powers vested in superior courts to ensure that, proceedings before the courts below do not result in injustice or failure or miscarriage of justice. In that view of the matter, we are of the opinion that the re visional jurisdiction must be understood and interpreted in the widest possible manner to ensure that injustice is avoided and justice prevails.”_ 10. It is true that there are decisions of the Apex court while interpreting Section 386 (a) Cr.P.C that in an appeal against acquittal, if the appellate court finds him guilty, the sentence shall be passed by the same court in accordance with law. 11. Learned counsel for the revision petitioner relied on _**Kumar Exports v. Sharma Carpets ((2009)2 SCC 513)**_ to urge the following propositions : _“This Court has also noticed a strange and very disturbing feature of the case. The_ **Crl.R.P No.2161 of 2004 9** _High Court, after convicting the appellant under Section 138 of the Act, remitted the matter to the learned Magistrate for passing appropriate order of sentence. This course, adopted by the learned Single Judge, is unknown to law. The learned Single Judge was hearing an appeal from an order of acquittal. The powers of the Appellate Court, in an appeal from an order of acquittal, are enumerated in Section 386(a) of the Code of Criminal Procedure, 1973. Those powers do not contemplate that an Appellate Court, after recording conviction, can remit the matter to the trial court for passing appropriate order of sentence. The judicial function of imposing appropriate sentence can be performed only by the Appellate Court when it reverses the order of acquittal and not by any other court. Having regard to the scheme of the Code of Criminal Procedure, 1973 this Court is of the view that after finding the appellant_ **Crl.R.P No.2161 of 2004 10** _guilty under Section 138 of the Act, the judicial discretion of imposing appropriate sentence could not have been abdicated by the learned Single Judge in favour of the learned Magistrate. Having found the appellant guilty under Section 138 of the Act it was the bounden duty of the High Court to impose appropriate sentence commensurate with the facts of the case. Therefore, we do not approve or accept the procedure adopted by the High Court. Be that as it may, in this case, we have found that reversal of acquittal itself was not justified.”_ 12. In answer to the above argument, learned counsel for the complainant contended that the principle of law stated in relation to Section 386(a) Cr.P.C cannot be applied in a case of revision, wherein this Court is legally bound to rectify a glaring mistake in the judgment of the court below. To butress this contention, reliance is placed on a decision rendered by the **Crl.R.P No.2161 of 2004 11** Supreme Court in _**Savarala Sai Sree v. Gurramkonda Vasudevarao and Others ((2014)2 SCC 485)**_ . In that case, the Supreme Court found that the sentence awarded by the High Court was disproportionately low and unjustifiable and hence it was remitted to the High Court for determining the quantum of punishment. It is true that by no stretch of reasoning the direction to pay compensation awarded by the lower appellate court can be sustained. Therefore, without prejudice to the rights of the revision petitioner, the only course open to this court is to remit the matter back to the lower appellate court for passing appropriate sentence after hearing the parties. In the result, the criminal revision petition is partly allowed. Conviction of the appellant under Section 138 of the Negotiable Instruments Act passed by the courts below is confirmed. The lower appellate court shall hear the accused and pass appropriate sentence in this matter in accordance with law. The accused shall appear before the court below on **Crl.R.P No.2161 of 2004 12** 15[th] December, 2014. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True copy// P.A to Judge