Omana Thanil Bhavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 4TH DAY OF NOVEMBER 2014/13TH KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 1887 of 2014 ()** **---------------------------------------** **AGAINST THE ORDER/JUDGMENT IN Crl.Appeal 229/2012 of ADDL.DIST. COURT (ADHOC)III, TRIVANDRUM DATED 30-11-2012 &** **AGAINST THE ORDER/JUDGMENT IN CC 1352/2007 of J.M.F.C.-I,ATTINGAL DATED 11-04-2012** ## **REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------------------------------------------** **OMANA THANIL BHAVAN, KANDELI, NAGAROOR ALTHARAMOODU P.O** **BY ADV. SRI.M.DINESH** ## **RESPONDENT(S)/RESPONDENTS/RESPODENTS/COMPLAINANT & STATE:** **----------------------------------------------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** ## **2. GOPINATHAN,** **S/O.NARAYANAN, CHIRAYIL VEEDU, (G.C BHAVAN), ALAMCODE, ATTINGAL- 695 101** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN R2 BY ADV. SRI.V.P.ANOOP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ss** ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1887 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 4[th] day of November, 2014 ## O R D E R Accused in C.C.No.1352/2007 on the file of Judicial First Class Magistrate Court-I, Attingal, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the 2[nd] respondent against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 1,00,000/-₹ and in discharge of that liability she had issued Ext.P1 cheque dated 10.10.2007, which when presented was dishonoured for the reasons ‘funds insufficient’ vide Ext.P2 dishonour memo dated 19.10.2007. The complainant issued Ext.P3 notice dated 05.11.2007 vide Ext.P4 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment and the 2 Crl. R. P. No.1887 of 2014 revision petitioner had sent Ext.P6 reply containing false allegations. The revision petitioner had not paid the amount and she had committed the offence punishable under Section 138 of the Negotiable Instruments Act and hence the complaint. 3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to her, she 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 and PW2 was also examined to prove the transaction. After closure of the complainant's evidence, revision petitioner was questioned under Section 313 of the Code and she denied all the incriminating circumstances brought against her in the complainant's evidence. She had further stated that she borrowed ₹20,000/from the complainant and at that time she had issued a blank signed cheque as security and though she paid the amount, the cheque was not returned and mis-using the same, the 3 Crl. R. P. No.1887 of 2014 complaint was filed. But no evidence was adduced on her side in evidence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for six months and also to pay a fine of 1,00,000/-, in default to₹ undergo simple imprisonment for three months more. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.229/2012 before the Sessions Court, Thiruvananthapuram, which was made over to Additional Sessions Court (Fast Track-III), Thiruvananthapuram, for disposal. The learned Additional Sessions Judge by the impugned order dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner before this court. 4 Crl. R. P. No.1887 of 2014 4. The counsel for the revision petitioner submitted that, the courts below have not properly understood the defence raised by the revision petitioner and in fact she had borrowed only 20,000/- and issued a₹ blank signed cheque as security, though the amount was paid the cheque was not returned and it was mis-used and the present complaint was filed. So she had rebutted the presumption and the execution of cheque was also not proved. So the courts below were not justified in convicting the appellant for the offence alleged. 5. On the other hand, the learned counsel appearing for the 2[nd] respondent submitted that, no rebuttal evidence was adduced on the side of the revision petitioner to prove her case and in the absence of any rebuttal evidence adduced, courts below were perfectly justified in relying on the evidence of PW1 and PW2 and the presumption under Section 139 and 118 of the Act, convicting the revision petitioner for the offence alleged and the concurrent finding of the court below on facts on Crl. R. P. No.1887 of 2014 5 ## this aspect do not call for any interference. 6. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 1,00,000/-₹ and in discharge of that liability, she had issued Ext.P1 cheque, but the case of the revision petitioner in her Ext.P6 reply notice was that, her sister Sheela borrowed a sum of ₹20,000/- and entrusted her title deeds and the blank signed cheque, though she paid the amount, the same were not returned. On 02.03.2007, the complainant summoned her through Mrs.Shobhana and Mrs.Lethika to his residence and had given a paper to her and asked her to write to effect that she borrowed 1,00,000/- and issued the cheque₹ of the revision petitioner and also the amount of 1,00,000/-₹ was written. So it is clear from this that, the revision petitioner had no consistent case regarding the manner in which her cheque had reached the hands of the complainant. Further no independent evidence was adduced on the side of the revision petitioner to prove her case as well. The complainant was examined as PW1 and 6 Crl. R. P. No.1887 of 2014 one witness was examined as PW2 to prove that the revision petitioner borrowed 1,00,000/- and in discharge of the₹ liability, she had issued Ext.P1 cheque. Though they were cross examined at length, nothing was brought out to discredit their evidence on this aspect. So in the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption or to prove her defence, courts below were perfectly justified in relying on the evidence of PWs1 and 2 and the presumptions available under Section 139 and 118 of the Act and rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the courts below on this aspect do not call for any interference, as no illegality has been committed by the court below in appreciating the evidence on this aspect. 7. As regards the sentence is concerned, the trial court had sentenced the revision petitioner to undergo simple imprisonment for six months and also to pay a fine of ₹1,00,000/-, in default to undergo simple imprisonment for 7 Crl. R. P. No.1887 of 2014 three months. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code and the appellate court had confirmed the sentence imposed by the courts below as well. Considering the fact that the offence under Section 138 of the Act is of purely a quasi civil nature for which the criminal colour has been given on account of the introduction of Section 138 of the Negotiable Instruments Act. Further the intention of the legislature is to make the drawer of the cheque to pay the amount and not to sent him to jail. Further the courts below were given power to fix the fine amount, so as to award compensation also out of the fine amount to the complainant so as to recoup his loss. 8. So considering the circumstances, this court feels that, having imposed a fine of 1,00,000/- and further₹ directed to pay the fine amount as compensation to the complainant, six months imprisonment imposed by the courts below, as substantive sentence appears to be 8 Crl. R. P. No.1887 of 2014 excessive and that can be reduced to imprisonment, till rising of the court. So the sentence is modified as follows: The revision petitioner is sentenced to undergo imprisonment till rising of the court and also to pay a fine of ₹1,00,000/-, in default to undergo simple imprisonment for three months. If the fine amount is realised, the same be paid to the complainant as compensation under Section 357 (1)(b) of the Code. If the compensation amount is directly paid to the complainant by the revision petitioner and if he produces proof of such payment before the trial court and the complainant appears before the court below and acknowledges the same, then court below is directed to treat the same as substantial compliance of the order to pay compensation out of the fine amount and that fact can be recorded in the respective fine register and allow the revision petitioner to undergo imprisonment till rising of the court as provided in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** . Crl. R. P. No.1887 of 2014 9 The counsel for the revision petitioner sought ten months time for payment of the amount. Considering the fact that the case is of the year 2007 and also considering the amount involved, this court felt that, five months time can be granted to pay the amount. So the revision petitioner is granted time till 04.04.2015, till then, execution of sentence is directed to be kept in abeyance. With the above modification of the sentence and direction regarding the payment, the revision petition is allowed in part. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. Ramakrishnan, Judge** // True Copy // P.A. to Judge ss