P. M. Gopalan v. T. K. Achuthankutty Kidavu and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 6TH DAY OF NOVEMBER 2017/15TH KARTHIKA, 1939** **Crl.Rev.Pet.No. 383 of 2016 () -------------------------------** **CC 346/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- II, PERAMBRA CRA 699/2014 OF ADDITIONAL SESSIONS COURT - V, KOZHIKODE** **-----------** **REVISION PETITIONER/APPELLANT/ACCUSED -------------------------------------** **P.M.GOPALAN, S/O.KELU, THAZHE KAYATTIARA VEEDU, PUNNASSERI POST, KIZHIKODE DISTRICT** **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENT(S)/COMPLAINANT/STATE:** **-------------------------------** **1. T.K.ACHUTHANKUTTY KIDAVU, S/O.KUNHIRAMAN NAIR, PUVVAPOYIL VEEDU, NANMINDA AMSOM, DESOM, NANMINDA POST, KOZHIKODE DISTRICT** **2. THE STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682031** **R1 BY ADVS. SRI.NIDHI BALACHANDRAN SRI.SABU GEORGE** **R2 BY PUBLIC PROSECUTOR SRI SAGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.R.P.No.383 of 2016 ----------------------------------------Dated this the 6[th] day of November, 2017 ## _**O R D E R**_ The revision petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.346 of 2011 on the file of the Judicial First Class Magistrate Court-II, Perambra, instituted on the basis of a complaint filed by the first respondent herein. 2. The trial court, as per the impugned judgment rendered on 14.11.2014, had convicted the petitioner for tcche abovesaid offence and had sentenced him to undergo simple imprisonment for a period of three months and to pay an amount of Rs.1,50,000/- as compensation to the complainant in terms of Section 357(3) of the Cr.P.C. and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a further period of two months. Aggrieved thereby the petitioner had preferred Criminal Appeal No.699 of 2014 before the Sessions Court, Kozhikode. The appellate court concerned (Court of the Additional Sessions Judge-V, Kozhikode), as per the impugned judgment rendered on 24.8.2015, had dismissed the appeal confirming the conviction and sentence imposed on the petitioner. It is challenging these concurrent verdicts of both the courts below that the petitioner has : **:2::** Crl.R.P.No.383/16 preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 3. Heard Sri.B.Krishna Mani, learned counsel appearing for the revision petitioner/accused, Smt.Nidhi Balachandran, learned counsel appearing for R-1/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 4. The allegations in the complaint are as follows : The complainant and the accused are friends. The other details of the complainant's case is that in discharge of a liability of Rs.1,50,000/-, the accused had issued Exhibit-P1 cheque dated 31.3.2011 for Rs.1,50,000/- drawn from his account and payable in favour of the complainant which when presented resulted in dishonour as per ExhibitP2 Bank memo dated 2.4.2011. Thereupon the complainant had sent Exhibit P3 statutory demand notice dated 18.4.2012 under Section 138 (b) of the Negotiable Instruments Act, calling upon the accused to pay off the amounts covered by the cheque within a period of 15 days from the date of receipt of the said notice. The said notice sent by registered post was duly served on the accused as per Exhibit P4 postal receipt and Exhibit P5 acknowledgment card. Since the accused had not responded to the complaint, the complainant after adhering to the requisite procedural formalities in that regard has instituted the present complaint which led to the conduct of the trial. : **:3::** Crl.R.P.No.383/16 5. During trial, the complainant has examined PW1 (complainant) and PW2 (Bank Manager) and has marked Exhibits P1 to P9 documents. The defence has adduced evidence to DW-1 and has marked Exhibits D1 to D3 documents. 6. PW1 has broadly deposed in tune with the contents of his complaint. PW1 and the accused were friends and in the year 2005, the accused had approached the complainant promising to secure a job to the complainant's son in the institution run by the accused and had demanded Rs.1,00,000/- as security on condition that the he would return the same amount within three years without any interest. Thereupon, the complainant and his son had given the accused Rs.1,00,000/- as demand draft on 25.7.2005. Exhibit P6 is the agreement dated 25.7.2005 executed in that regard between the son of the complainant and the accused. PW2 Bank Manager has stated that two demand drafts for Rs.50,000/- each, thus totalling to Rs.1,00,000/has been paid from the complainant's account and that the same was encashed by the accused. Exhibit P9 is the Bank account statement in that regard evidencing payment of the total amount of Rs.1,00,000/- to the accused by the complainant. Later, when the accused had not kept his word in refunding the security deposit of Rs.1,00,000/-, the complainant had repeatedly made demands on the accused to repay the said amount and ultimately the parties have entered into Exhibit P7 : **:4::** Crl.R.P.No.383/16 agreement dated 13.2.2011, thereby the accused had agreed to pay an amount of Rs.1,50,000/- for the security deposit of Rs.1,00,000/borrowed earlier. It is in discharge of the said liability, Exhibit P1 cheque dated 31.3.2011 for Rs.1,50,000/- drawn from the account of the accused and payable in favour of the complainant was issued, which resulted in dishonour, etc. 7. The main defence taken up by the accused was to the effect that there was no transaction between the parties. Secondly it is also contended that the institution run by the accused was a partnership firm and that he was not authorised to individually receive any amount from any person, etc. DW1 has given evidence stating that the partnership firm in question was registered only in the year 2008 and that prior to that the institution was run as a proprietary concern of the accused. The courts below have noted that the transaction alleged between the parties was in the year 2005 and that therefore, the contention raised by the accused regarding the partnership firm is not relevant and tenable. Exhibit-P6 agreement dated 25.7.2005 and Exhibit P7 agreement dated 13.2.2011 would clearly prove the transaction between the parties. Moreover, Exhibit P9 Bank ledger statement and the evidence of PW2 have clearly brought evidence to show that a total amount of Rs.1,00,000/- paid from the account of the complainant has been encashed by the accused. The condition not to : **:5::** Crl.R.P.No.383/16 charge any interest on the security amount of Rs.1,00,000/- was applicable only in a case where the accused would pay the said amount within a period of three years. Since the said three years' period has expired, as per Exhibit P7 agreement dated 13.2.2011 the parties agreed that the accused would pay a total amount of Rs.1,50,000/- in respect of the amount of Rs.1,00,000/- given as security deposit earlier. In discharge of the said liability, Exhibit-P1 cheque dated 31.3.2011 for Rs.1,50,000/- was issued. It is in the light of all these aspects that the courts below have found that there is sufficient and necessary evidence to prove the case of the complainant and that the petitioner/accused is liable to be convicted for the offence punishable under punishable Section 138 of the Negotiable Instruments Act. These findings of fact concurrently rendered by both the courts below cannot be said to be vitiated by gross perversity or illegality. Therefore, it is not proper and right for this Court to interfere with the said findings of conviction by exercising revisional powers of conferred on this court.. 8. As regards the question of sentence, it is seen that the accused has been sentenced to simple imprisonment for a period of three months and to pay compensation amount of Rs.1,50,000/- to the complainant. Going by the legal principles well settled by the Apex Court as in _**Damodar S.Prabhu v. Sayed Babalal.H** ._ reported in _**AIR 2010 Supreme Court 1907**_ and _**Kaushalya Devi Massand v.**_ : **:6::** Crl.R.P.No.383/16 _**Rookishore**_ reported in _**AIR 2011 Supreme Court 2566**_ , the offence of dishonour of cheque envisaged in Section 138 of the Negotiable Instruments Act is essentially a civil wrong which has been given criminal overtones by the legislative amendments made by the parliament in the Negotiable Instruments Act and that imposition of fine payable as compensation to the complainant would be sufficient to meet the ends of justice and that the present sentence would ordinarily be avoided, unless there are exceptional and compelling circumstances in that regard. In the light of these principles, this Court is inclined to reduce the substantive sentence of three months' simple imprisonment to imprisonment till the rising of the court. The compensation amount of Rs.1,50,000/- is sustained. 9. Sri.B.Krishna Mani, learned counsel appearing for the revision petitioner/accused, submits that in case this Court is inclined to confirm the conviction, then this Court may grant four months' time to the petitioner to pay the compensation amount of Rs.1,50,000/- directly to the complainant. ## Accordingly, the following orders and directions are passed. - _The impugned conviction imposed on the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act will stand confirmed._ - _(ii) The substantive sentence of simple imprisonment for three months imposed on the petitioner will stand reduced and_ : **:7::** Crl.R.P.No.383/16 _modified as imprisonment till the rising of the court. The petitioner will pay the compensation amount of Rs.1,50,000/directly to the complainant. On default on the petitioner to pay the said amount, he will have to suffer simple imprisonment for a period of two months._ - _(iii) The petitioner is given four months' time to pay the compensation amount of Rs.1,50,000/- directly to the complainant. Upon receiving such amount, the complainant will issue necessary receipts evidencing such payments to enable the accused to produce the same before the trial court to satisfy the said court about such payments._ - _(iv) The petitioner shall personally appear before the trial court at 11 A.M. on any day on or before 17.3.2018 to receive the sentence of simple imprisonment till the rising of the court and to satisfy the said court about payment of the total compensation amount of Rs.1,50,000/- directly to the complainant._ - _(v) Until 17.3.2018 all further coercive steps for execution of the impugned sentence in this case will stand deferred._ - _(vi) On default of the petitioner either to appear before the trial court or to pay the abovesaid amount as directed above, the trial court will be at liberty to proceed against the petitioner in accordance with law._ The Registry will forward a copy of this order to the trial court for necessary information. ## **ALEXANDER THOMAS JUDGE** csl