O.KANAKAN v. SAIDALI KOYA HAJI and STATE

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 Crl.Rev.Pet.No. 1401 of 2007() -----------------------------CRA.297/2005 of ADDL.SESSIONS COURT-II, KOZHIKODE ST.122/2003 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- O.KANAKAN, AGED 45 YEARS, S/O.ORALAKOTTU KRISHNAN, KRISHNARJUNA, P.O.PANTHEERANKAVU, KOZHIKODE-673 019. BY ADV. SRI.R.SUDHISH SMT.M.MANJU ## RESPONDENTS: COMPLAINANT AND STATE ---------------------------------- 1. SAIDALI KOYA HAJI, S/O.AVARANKUTTY, KSK STORES, KINASSERY, P.O.POKKUNNU, KOZHIKODE-673 013. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ SRI.C.K.RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J** ## **----------------------** Crl.R.P.No.1401 of 2007 ---------------------------------------Dated this the 1[st] day of January 2008 ## **O R D E R** This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The appellate court had modified the sentence. 2. The cheque is for an amount of Rs.3,00,000/-. The signature in the cheque and handing over of the cheque are admitted. That the cheque was dishonoured on the ground that payment was stopped by the accused is also not disputed. Notice of demand was duly received and acknowledged. It did not evoke any response. The complainant examined himself as PW1 and proved Exts.P1 to P7. The accused did not adduce any defence evidence. 3. The learned Magistrate in these circumstances came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly the learned Magistrate proceeded to pass the impugned judgment. 2 Crl.R.P.No.1401/2007 4. The learned Sessions Judge in appeal, concurred the conclusion that all ingredients of the offence under Section 138 of the Negotiable Instruments Act have been established but proceeded to modify the sentence imposed. Substantive sentence of imprisonment was reduced to imprisonment till rising of court. Actual cheque amount was directed to be paid as compensation. Default sentence - S.I for a period of five months was also imposed. 5. The learned counsel for the petitioner/accused and the respondent/complainant have advanced their arguments. The learned counsel for the petitioner assails the impugned concurrent verdict of guilty, conviction and sentence on various grounds. 6. First of all it is contended that the cheque was not issued for the due discharge of any legally enforcible debt or liability. Signature in the cheque and handing over of the cheque are admitted. Financial transactions between the parties are also admitted. Accused had raised a contention that the actual liability was only Rs.50,000/-. The said liability has been discharged and then the documents creating the liability were returned to the accused. The complainant has a different case. According to him, the total liability was Rs.3,50,000/-. In Crl.R.P.No.1401/2007 3 discharge of the liability, Rs.50,000/- had been paid in cash. Balance amount of Rs.3,00,000 was paid by the cheque in question. When the cheque was issued, the documents evidencing liability were allegedly returned to the accused leaving only the cheque available with the complainant. 7. The learned counsel for the petitioner contends that this version is improbable. The version of the accused competes in probabilities with that of the complainant and in these circumstances the benefit of doubt at least must have been conceded to the accused. 8. I have considered all the relevant inputs. The transaction between the parties, the signature in the cheque and handing over of the cheque are all admitted. The presumption under Section 139 of the Negotiable Instruments Act does, in these circumstances, stare at the petitioner. Admittedly, notice of demand has been received by the accused. No reply was issued to that notice at all. Even though evidence shows that stop payment memo was issued, no attempt has been made to get the same produced or to explain under what circumstances such stop payment memo was issued. The mere fact that the complainant admitted that when partial discharge was made by making a cash payment of Rs.50,000/- and the balance amount of Crl.R.P.No.1401/2007 4 Rs.3,00,000/- was paid by cheque, the documents evidencing the liability were returned to the accused cannot be held to clinch the issue. Even the accused has not chosen to produce such documents which were allegedly returned to him by the complainant. The conduct of the accused of not responding to the notice of demand and the conduct of not making any attempt to explain why a stop payment memo was issued knocks the bottom out of the theory that the cheque was not issued for the due discharge of any legally enforcible debt or liability. It must be held in the facts and circumstances of this case that the accused had totally failed in discharging the burden under Section 139 of the Negotiable Instruments Act. 9. The learned counsel then contends that reasonable opportunity has not been granted to the petitioner to substantiate his defence. The learned counsel points out that the case was not posted specifically for defence evidence. The learned counsel relies on the decision reported in Ali vs. State of Kerala [2001(2) KLT 389]. There must have been a specific posting for defence evidence, it is urged. Records have been perused by me. While examined under Section 313, it has clearly been stated by the accused that he has no defence evidence to be adduced. The decision in Ali vs. State of Kerala Crl.R.P.No.1401/2007 5 [2001(2) KLT 389] deals with a sessions trial where the burden on the accused to adduce defence evidence would start only when he is directed by the Sessions court to enter upon defence. That is evidently not the situation in this case. There is no provision in a summons/summary trial for the court to direct the accused to enter upon defence. When 313 examination was conducted, the petitioner had clearly stated that he had no defence evidence to adduce. 10. Long later, it is seen that the matter was heard and was posted for judgment. Subsequently an application was filed to permit the petitioner to re-open the evidence, to adduce defence evidence and to get the cheque examined by the expert. Those petitions were dismissed as per order dated 14/3/2005. It is evident that the petitioner had no intention to adduce any defence evidence and belatedly such an attempt was made only to protract the proceedings. The contention that the petitioner did not get reasonable opportunity to adduce defence evidence is in these circumstances found to be without any merit. 11. I do, in these circumstances, find no merit in the challenge raised against the verdict of guilty and conviction on merits. Crl.R.P.No.1401/2007 6 12. Coming to the question of sentence, I note that leniency to the extent possible has already been granted to the petitioner by the appellate court. Section 138 of the Negotiable Instruments Act was amended only with effect from 6/2/2003 and in these circumstances the default sentence cannot exceed 1/4 of the maximum substantive sentence prescribed. The default sentence cannot hence exceed three months. The default sentence imposed by the courts below - imprisonment for a period of five months therefore deserves to be modified. Challenge in this Crl.R.P can succeed only to the above extent. 13. In the result: a) This revision petition is allowed in part. - b) The appellate judgment is upheld in all other respects. c) But the default sentence is reduced to S.I for a period of three months. The petitioner shall have time till 29/2/2007 to pay the amount and avoid the default sentence. The petitioner must appear before the learned Magistrate on 1/3/2007 for execution of the sentence. ## **(R.BASANT, JUDGE)** jsr // True Copy// PA to Judge Crl.R.P.No.1401/2007 7 Crl.R.P.No.1401/2007 8 **R.BASANT, J** C.R.R.P.No. ORDER Crl.R.P.No.1401/2007 9 21ST DAY OF JULY 2006