P. M. Abdul Karim v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Crl.Rev.Pet.No. 107 of 2008() ----------------------------CRA.302/2006 of ADDL. SESSIONS JUDGE (ADHOC-I), MANJERI CC.71/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- P.M.ABDUL KARIM, S/O MUHAMMED, PULIKKAL PALLI MANHAYALIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR P.O., OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.S.SOMAN SRI.SAJEEV KUMAR K.GOPAL RESPONDENTS: RESPONDENTS/STATE & COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLICE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.V.ABDUL HAMEED, S/O K.V.MARAKKAR KUTTY KORIYATT VETTAMPARAMBIL HOUSE, PATTIKKAD, KEEZHATTUR VILLAGE, PATTIKKAD P.O. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 107 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th 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 N.I. Act. The petitioner now faces the sentence of S.I. for a period of three months. There is a further direction to pay the actual cheque amount of Rs.1,20,000/- as compensation under Section 357(3) Cr.P.C. No default sentence is imposed. 2. The cheque is for an amount of Rs.1,20,000/- It bears the date 4.12.2004. Signature in the cheque is admitted. That the cheque was handed over by the petitioner after affixing his signature is also admitted. But it is contended that the cheque was not handed over to the complainant. The cheque was not issued to any one for the due discharge of any legally enforceable debt/liability, but was handed over as a blank signed cheque as security when the petitioner availed a loan of 2 Crl.R.P.No. 107 of 2008 Rs.25,000- from one Ummer and his wife in the year 2000. The entire amount due to Ummer and his wife was repaid. But the cheque was not returned. They later raised a controversy that further amounts are payable by way of interest. A further amount of Rs.3,000/- was paid after mediation and settlement. But the cheque was not returned on the plea that it was lost and was not traceable. Later Ummer and his wife complained to the local Circle Inspector that the petitioner had not returned amounts due under the cheque. Thereupon the Circle Inspector intervened in the matter. He realised that no amounts are payable. He directed the said Ummer and his wife to return the cheque to the complainant. The cheque was still not returned. Thereafter the petitioner caused Ext.D1 notice dt.30.12.2004 to be issued to the said Ummer and his wife. After receipt of that notice the said Ummer and his wife have put up the petitioner to stake a false and untenable claim on the basis of Ext.P1 cheque. When the notice of demand was received Ext.D5 reply was issued raising the very same plea. 3. After observing the statutory time table and formalities scrupulously, the complainant came to court. The accused denied the 3 Crl.R.P.No. 107 of 2008 offence alleged against him. Thereupon complainant examined himself as PW1 and proved Exts.P1 to P6. On the side of the petitioner he examined himself as DW1. DWs. 2 and 3 are the brother of the petitioner and the brother-in-law of the said Ummer. They were examined in support of the plea of the petitioner that they had intervened in the disputebetween Ummer and the petitioner and had attempted to settle the dispute. 4. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments. 5. The petitioner claims to be aggrieved by the impugned appellate judgment. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner re-iterates the contention that the cheque was not issued for the due discharge of any legally enforceable debt/liability. He further prays that leniency may be shown on the question of sentence. Crl.R.P.No. 107 of 2008 4 6. I am at the third tier of criminal litigation and it is trite by now that the revisional powers of superintendence and correction cannot be invoked lightly to interfere with the concurrent findings of facts. Unless such findings of facts are grossly erroneous and they in turn lead to miscarriage of justice the revisional jurisdiction shall not ordinarily be invoked. 7. Signature in the cheque is admitted and the plea is that it was handed over as a blank signed cheque to one Ummer and his wife. The support of the brother-in-law of Ummer, another Ummer/DW3, has been secured in support of this theory. But the courts below found it unsafe to rely on the oral evidence of DW3. If his version were to be believed, he was tendering evidence against the interest of his own sister and brother-in-law. The theory advanced has major improbabilities attached to it. When the entire amount was paid, return of the cheque was not insisted. Later when further amounts were demanded and the matter was settled, then also insistence was not made on the return of the cheque. Nay, not even an acknowledgment was obtained from Ummer and his wife that the entire liability has been discharged and the cheque was lost and was not traceable. What Crl.R.P.No. 107 of 2008 5 is curious is that inspite of the alleged conduct of Ummer and his wife, the petitioner did not even issue a stop memo to his bank for obscure reasons. The version advanced is uninspiring and no ordinarily prudent mind can swallow the said version. 8. It is then submitted that later there were disputes between the parties and the local Circle Inspector intervened. No semblance of material has been adduced in support of the theory that such mediation and settlement was attempted. The date on which mediation took place is not mentioned. Ext.D1 notice was issued to Ummer and his wife. The counsel for the petitioner attempts to place crucial significance to that. But the attempt falls to the ground when one considers the fact that the dishonour of the cheque had taken place on 17.12.2004 and Ext.D1 notice was issued long later on 30.12.2004. 9. At my request I have been taken through the cross examination of PW1. Nothing has been brought out that can persuade this Court to reject his evidence or even to entertain a reasonable doubt on the acceptability of the same. The oral evidence of PW1 is eminently supported by his ability to produce Ext.P1 cheque, which, Crl.R.P.No. 107 of 2008 **==> picture [7 x 10] intentionally omitted <==** admittedly is drawn on a cheque leaf issued to the petitioner by his bank to operate his account. The presumption under Section 139 of the N.I. Act does also stare at the petitioner. The evidence of DWs 1 to 3 and Exts.D1 to D12 do not measure up to the requisite standard of proof by the test of preponderance of probabilities and possibilities by which test atleast the petitioner is bound to establish his case. The petitioner need not disprove the case of the complainant. He does not have to prove his case beyond reasonable doubt also. 10. I do not in these circumstances find any reason to invoke the revisiional jurisdiction of superintendence and correction against the verdict of guilty and conviction. The challenge on the first ground therefore fails. 11. The learned counsel for the petitioner prays that leniency may be shown on the question of sentence. I find merit in the said prayer. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I. Act in the decision in **Anilkumar** v. **Shammy** (2002 (3) KLT 852). I am not satisfied that there are any compelling reasons which would justify or Crl.R.P.No. 107 of 2008 7 warrant imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to wait from 2004 and to fight two rounds of legal battle for the redressal of his grievances. Appropriate compensation can be directed to be paid coupled with a default sentence which shall ensure its compliance. The decisions in **Hari Kishan & State of** v. **Haryana Sukhbuir Singh** (AIR 1988 SC 2127) and **Suganthi Suresh Kumar** v. **Jagadeesan** (AIR 2002 SC 681) clearly convey that a default sentence can be imposed to enforce the direction for payment of compensation. No subsequent decision of the Supreme Court taking a different view has been brought to my notice. 12. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice on the respondent. 13. In the result: (a) This revision petition is allowed in part. - (b) The impugned verdict of guilty and conviction of the 8 Crl.R.P.No. 107 of 2008 petitioner under Section 138 of the N.I. Act are upheld. © But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C. to pay an amount of Rs.1,35.000/- as compensation and in default to undergo S.I. for a period of three months. 14. The petitioner shall have time till 29.2.2008 to pay the amount and avoid the default sentence. The modified sentence shall not be executed till that date. On or before 1.3.2008 the petitioner shall appear, and his sureties shall produce him, before the learned Magistrate for execution of the modified sentence. **(R. BASANT)** Judge tm