P. Joy v. C. Alavi and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938** **Crl.Rev.Pet.No. 150 of 2016 () -------------------------------** **(AGAINST THE ORDER/JUDGMENT IN CRA 132/2012 of ADDL. D.C. & SESSIONS COURT - III, MANJERI DATED 30-10-2015 AGAINST THE ORDER/JUDGMENT IN CC 88/2009 of J.M.F.C.-I, PERINTHALMANNA)** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **P.JOY, AGED 53 YEARS, S/O.P.C.PAUL, DOOR NO.12/48, KOZHIKODE ROAD, T.K.PET, GUDALLUR P.O. GUDALLUR AMSOM, DESOM, GUDALLUR TALUK, NILGIRI, TAMIL NADU.** **BY ADVS.SRI.P.SAMSUDIN SRI.K.C.ANTONY MATHEW SRI.JITHIN LUKOSE** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------** ## **1. C.ALAVI, AGED 53 YEARS,** **S/O.HYDRU (LATE), CHOLASSERI HOUSE, P.O.KOOTTIL 676 524, MANKADA, CHERIYAM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** ## **2. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADV. SRI.K.M.SATHYANATHA MENON R1 BY ADV. SMT.KAVERY S THAMPI R2 BY PUBLIC PROSECUTOR SRI.C.K.SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-08-2016, THE COURT 26/8/2016 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.R.P.No.150 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of August, 2016 ## **O R D E R** The accused in CC No.88/2009 on the files of the Judicial First Class Magistrate Court-I, Perintalmanna, who was convicted and sentenced for offence punishable under Section 138 of the Negotiable Instruments Act which was confirmed in appeal, has preferred this revision. 2. The complainant filed the above complaint on the basis of a dishonoured cheque for a sum of Rs.22,00,000/-. It was stated that the complainant was running a firewood business. The accused approached him representing to be the suppler of fire wood to companies at Tamil Nadu. They entered into an oral contract for supply of several loads of fire wood to few Tea companies in Tamil Nadu. As agreed between the parties, several loads of fire wood were supplied by the complainant over a long period. Amounts were paid at intervals and ultimately, towards the discharge of the outstanding amounts due, a cheque for Rs. 22 Lakhs was handed over representing that it would be honoured on presentation. When it was presented, it was returned with an endorsement that ' payment stopped by Crl.R.P.No.150/2016 2 the drawer'. A statutory notice was issued which was replied by the accused stating false allegations. Hence, the complaint was laid. The accused appeared and contested the proceedings. On the side of the complainant, PW1 to PW5 were examined and Exts.P1 to P5 were marked. There was no evidence on the side of the accused. The trial court, on an evaluation of the available materials, found the accused guilty , convicted and sentenced him to undergo SI for three months and to pay a compensation of Rs.22,10,000/- to the complainant under section section 357 (3) of Cr.P.C. In default, he was to undergo SI for two months. This was challenged in appeal by the accused. The appellate court, after re-evaluation of the entire materials, concluded with the finding of guilt arrived at by the court below. The sentence was modified to one to undergo SI till rising of the Court and to pay a fine of Rs.23 Lakhs and in default of it to undergo SI for six months. It was further provided that if the above amount was recovered, it shall be paid to the complainant, under Section 357(1)(b) of the CPC. This is assailed in this revision. ## 3. Heard both sides and examined the records. 4. The defence that was set up by the accused was that Crl.R.P.No.150/2016 3 he has not issued the cheque. It was alleged that the signed cheque was missing from the accused, which was presented by the defacto complaint to make a false claim. This was the contention that was set up in the reply notice and a defence of total denial was set up at the time of cross examination as well as in the reply of the accused under Section 313 Cr.P.C. questioning . 5. To substantiate the case of the complainant, he got himself examined as PW1. He deposed that he had supplied the fire wood on the basis of an oral agreement with the accused. It was stated that he had sent the firewood by truck. Towards the amount, that had accrued, amounts were paid either in cash or cheque. Finally, towards the discharge of all outstanding liabilities, the disputed cheque was handed over. It was submitted that the cheque could be presented on 18/8/2008. Before that date, the accused telephoned the complainant and requested for one more month time for arranging sufficient amounts in the bank account. Thereafter, the cheque was presented, but was returned due to reason that payment stopped by the drawer. PW1, though deposed in detail, could not be successfully demolished in the cross examination. Crl.R.P.No.150/2016 4 6. Evidently, there is no direct evidence to prove the contract between the complainant and the accused. However, PW2 to PW4 were examined to prove the supply of fire wood by the complainant. All the above three witnesses were the managers of the various tea factories, who had given evidence supporting the case of the complainant that he had supplied the fire wood. PW2 produced weigh bridge bills in original along with photo copies during the period April 2007 to June 2007, marked as Ext.P10 to P15. He deposed that they had two suppliers one was the accused and the other one was one Moideenkutty. The complainant had no agreement with the company for supply of fire wood. Hence, it is clear that his supply of fire wood to the company was for any of the above two suppliers. Even according to the complainant, there was no contract in writing for supply on behalf of the accused. PW3, another manager, produced records pertaining to another firewood business supporting the permits issued by the various department. It was stated that the permit was issued to one K.T.Alavi. PW4 was manager of another firewood business, who also deposed about the supply of firewood. 7. PW1 further deposed that, he had supplied the fire Crl.R.P.No.150/2016 5 wood to the company on behalf of the accused. PW 2 to PW4 only confirmed about the supply of goods. The accused has no case that he had not entered into an agreement for supply of fire wood with the above companies. On the other hand, it is clear that sufficient materials were available to show that the fire wood were supplied on behalf of the accused. Accused has absolutely no case that he has supplied fire wood to the compnay and if so, from where he procured the fire wood. He had also not asserted that there was no agreement, much less, an oral agreement between the complainant and the accused. According to PW1, the oral contract was for supply of fire wood for one year. This aspect of supply by oral agreement was not challenged in the cross examination. The only challenge in the course of cross examination was that the complainant had supplied fire wood by an illegal transaction. The basis of this contention was that the complainant had admitted that he had a license for fire wood business. However, he admitted that he had no PMR registration. He admitted that one K.T.Alavi, had PMR license and the fire woods were dispatched by the complainant in the name of K.T.Alavi. He also admitted that from 1992 onwards, the transportation of woods to other States were banned. He Crl.R.P.No.150/2016 6 admitted that it could be transported only on permit basis. ` 8. Learned counsel for the accused vehemently contended that even going by the version of the complainant he was supplying fire wood under the permit issued to one K.T.Alavi. According to him, it was illegal transaction and even assuming that the cheque was issued towards the above transaction, it was for an illegal business and hence there was no legally enforceable debt. According to him, the basic transaction was illegal and the courts cannot enforce an illegal transaction. 9. I am not inclined to accept the above contention for more reasons than one. Accused has no case that the complainant had transported the goods without any pass. PW1 had stated that the fire wood were supplied with the passes issued by the Forest Department which were produced in the company. PW3 had stated that the permits issued by the Forest Department were produced in the company. The complainant had specifically denied the suggestion that he was doing illicit transaction. On the other hand, PW2 had specifically stated that the supply of fire wood was strictly legal. Hence, supply of the firewood in the licence of K.T.Alavi cannot be considered as an illegal transportation Crl.R.P.No.150/2016 7 unless there was proof of breach of any law and the due payable to the Government and the Forest Authorities were duly paid. There is absolutely no evidence to show that there was any breach of any Law. 10. Learned counsel for the accused relying on the decision reported in **Jose v. P.C.Joy [2008 (3) KHC 241]** , contended that the prosecution has to prove that the cheque was drawn by the accused and that it was towards the discharge of any debt or liability. It was contended that in **Krishna Janardhan Bhat v.Dattatraya Hegde [2008 (1) KLT 425(SC]** , it was held that existence of legally recoverable debt is not a matter of presumption under section 139. In the case at hand, evidence of PW1 coupled with evidence of PW2 to PW4 clearly shows the supply. The evidence prove that there was a transaction between the complainant and the accused. PW5 is K.T.Alavi, who himself has deposed in support of the evidence of PW1 and stated that he had supplied fire wood on behalf of the complainant. 11. According to the learned counsel for accused, even assuming that when a evidence is let in by the complainant and the accused has produced evidence fairly and reasonably to show that the real fact is not one as presumed, the purpose Crl.R.P.No.150/2016 8 of the presumption is over. Learned counsel relied on the decision in **Bhaskaran Nair. v. Mohanan [2009 (3) KLT 580]** to buttress the above argument. 12. In the case at hand, the evidence sufficiently proved the due execution of the cheque. Existence of legally enforceable debt was also proved. On the other hand, the defence set up by the accused appeared to be too flimsy. It is pertinent to note that specific defence set up by the accused in his reply notice was that complainant was a frequent visitor to the house of the accused. He had kept six signed cheques at his residence which were found missing. Since he apprehended that the accused had stolen it, he had given a stop memo to the bank. There is absolutely no evidence to prove the above contention. The above version also does not appear to be convincing since no reasonable explanation is forthcoming as to why the accused kept six signed cheques in his house, which was accessible to the outsiders. He has no case as to when the cheques were lost. Nothing is brought on record to show when he came to know about the loss of cheque and when the stop memo was issued to the bank. On the other hand, in the cross examination, a totally different defence was suggested to PW1 that a cheque was stolen by Crl.R.P.No.150/2016 9 one Moideenkutty. In the light of the above inconsistent defence and the absence of denial regarding the business transaction with the complainant, the only legitimate conclusion that can be arrived at is that the cheque was issued towards the discharge of a legally enforceable debt. 13. It was further contended by the learned counsel for the accused that both the courts went wrong in not applying the principles laid down by the Supreme Court in **John K.Abraham v Simon (2014 (1) KLT 90(SC)** wherein the court had held that the burden is heavily on the complainant to show that he had the required fund for advancing the money to the accused. This decision has no application to the facts of the case for two reasons. Firstly, even according to the complainant, there was no advancement of money to the accused. The cheque was executed and delivered towards the discharge of a outstanding monetary liability for supply of goods. Further, the accused had not challenged the financial capacity of the complainant. It is on record that the accused had firewood business. 14. In the above circumstances, I am not inclined to accept the contentions of the accused. The conclusion arrived at by the courts below concurrently is only to be Crl.R.P.No.150/2016 10 upheld. I find no reason to differ with the conclusions arrived at by the courts below and the sentence moulded by the appellate court. In the result, the revision fails and is dismissed confirming the conviction and sentence imposed by the appellate court. However, the accused is granted six months time from today to satisfy the sentence. All further coercive steps may be kept in abeyance for six months. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.R.P.No.150/2016 11