P. V. Herman v. M/S RAPPAI SONS and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 2163 of 2014 ()** **-----------------------------------------** **AGAINST THE JUDGMENT IN Crl.APPEAL NO. 51/2014 of ADDL. DIST. & SESSIONS JUDGE - IV, ERNAKULAM, DATED 02-07-2014 & AGAINST THE JUDGMENT IN CC 117/2013 of J.M.F.C. - IV, ERNAKULAM, DATED 30-12-2013** ## **REVISION PETITIONER(S):** **------------------------------------** **P.V. HERMAN, AGED 44 YEARS, S/O. VARKEY, PANAKKAL HOUSE, THURUTHOOR, PUTHENVELIKARA P.O., ERNAKULAM DISTRICT 683 594.** **BY ADV. SRI.T.N.SURESH** ## **RESPONDENT(S):** **------------------------** **1. M/S. RAPPAI SONS, CARMEL BUILDINGS, BANERJI ROAD, ERNAKULAM, KOCHI - 682 018. REPRESENTED BY ITS MANAGING PARTNER, K.R. MOHAN, S/O. LATE K.A. RAPPAI, RESIDING AT KAVALAKKAT HOUSE, AZAD ROAD, KALOOR, COCHIN 682 017.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P.No.2163 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 16[th] day of December, 2014 ## **O R D E R** Accused in C.C.No.117/2013 on the file of the Judicial First Class Magistrate Court-IV, Ernakulam, is the revision petitioner herein. The case was taken on file on the basis of a private complaint, filed by the complainant/ first respondent herein against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’). 2. The case of the complainant in the complaint was that, the revision petitioner purchased goods worth ₹2,13,928.50 as per Ext.P2 series bills and after making an initial payment of 70,000/- issued Exts.P1 and P2 cheques₹ for 80,000/- and 50,000/- in partial discharge of the₹ ₹ balance amount due, which when presented were dishonoured for the reason ‘funds insufficient’ evidenced by Exts.P3 and P4 dishonour memos, and the same was 2 Crl. R.P. No.2163 of 2014 intimated to the complainant evidenced by Exts.P5 and P6 dishonour memo and intimation letter. The complainant issued Exts.P7 and P8 notices, demanding payment of the amounts covered by the cheques and the same were received by the revision petitioner evidenced by Exts.P9 and P10 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the Managing partner of the complainant evidenced by Ext.P11 partnership deed was examined as PW1 and Exts.P1 to P12 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the 3 Crl. R.P. No.2163 of 2014 complainant's evidence. He had further stated that, he had handed over a blank signed cheque as security for the business transaction between him and the complainant concern and though he had paid the amount, the cheque was not returned, misusing the cheque the present complaint was filed. But no evidence was adduced on the side of defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for two months and also to pay a fine of 1,49,000/-, in default to₹ undergo simple imprisonment for one month more. It is further ordered that, if the fine amount is realised, the same was directed to 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.51/2014 before the Sessions Court, Ernakulam, which was made over to 4[th] Additional Sessions 4 Crl. R.P. No.2163 of 2014 Court, Ernakulam, for disposal and the learned Additional Sessions Judge by the impugned judgment dismissed the appeal, confirming the order of conviction and sentence passed by the court below. Dissatisfied with the same, the present revision has been field by the revision petitioner/ accused before the court below. 4. Considering the scope of enquiry and the nature of contentions raised, this court felt that, the revision can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and learned Public Prosecutor appearing for the 2[nd] respondent, dispensing with notice to the 1[st] respondent. 5. The counsel for the revision petitioner submitted that, the courts below have not properly appreciated the evidence and the scope of contentions raised by the revision petitioner and the sentence imposed is also harsh. 6. The learned Public Prosecutor supported the Crl. R.P. No.2163 of 2014 5 concurrent findings of the courts below on this aspect. 7. The case of the complainant in the complaint was that, the revision petitioner purchased articles from their shop for an amount of 2,13,928.50, evidenced by₹ Ext.P12 series bills on credit and paid 70,000/- and for the₹ balance amount of 1,43,928.50, in partial discharge of the₹ same, he had issued Exts.P1 and P2 cheques for 80,000/-₹ and 50,000/- respectively. But the case of the revision₹ petitioner was that, he had given a blank signed cheque as security for the transaction, but though he had paid the amount, the cheques were not returned and misusing the cheques, the present complaint was filed. In order to prove the case of the complainant, PW1 was examined and though he was cross examined at length, nothing was brought out to discredit his evidence regarding this aspect. Further the revision petitioner had not produced any document to prove that the entire amounts covered by Ext.P12 series bills were discharged for which the cheques were alleged to have 6 Crl. R.P. No.2163 of 2014 been given as security. Further he did not send any reply to the notice issued also. So in the absence of any evidence adduced on the side of the revision petitioner to prove his case, the courts below were perfectly justified in coming to the conclusion that, the case of the revision petitioner is not believable and relying on the evidence of PW1 and the statutory presumption available under Section 139 and 118 of the Act, rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect do not call for any interference. 8. As regards the sentence is concerned, the trial court had sentenced him to undergo simple imprisonment for two months and also to pay a fine of ₹1,49,000/-, in default to undergo simple imprisonment for one month more. It is further ordered that, if the fine amount is realized, the same was directed to be paid to the complainant as compensation under Section 357(1)(b) of Crl. R.P. No.2163 of 2014 **==> picture [8 x 9] intentionally omitted <==** the Code of Criminal Procedure and the same was confirmed by the appellate court. In the decision reported in **Damodar S. Prabhu v. Sayed Babalal H. [JT 2010 (4) (S.C.)457]** and also in **Somanath Sarkar v. Utpal Basu Mallick [2013(4) KLT 350 (S.C.)]** , the Hon'ble Supreme Court has held that, the offences under Section 138 of the Act are generally of civil nature, and the intention of the legislature is to make the drawer of the cheque to pay the amount and providing monetary benefit by compensation will be sufficient instead of giving substantive sentence of imprisonment and sending the drawer of the cheque to jail. Further in the later decision in Somanath Sarkar’s case (supra), the Hon'ble Supreme Court has held that, court has got power to award double the cheque amount as fine and after quantifying the fine, compensation can be awarded out of the same. So considering the above principle, this court feels that, enhancing the fine and reducing the substantive sentence will be sufficient and that will meet 8 Crl. R.P. No.2163 of 2014 the ends of justice. So sentencing the revision petitioner to undergo imprisonment till rising of the court and also to pay a fine of 1,75,000/- and in default to undergo simple₹ imprisonment for four months will be sufficient and that will meet the ends of justice and if the fine amount is realized, directing the same to be paid to the complainant as compensation will serve the purpose of the complainant as well. 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 ₹1,75,000/-, in default to undergo simple imprisonment for four months. If the fine amount is realized, the same is directed to be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Six months time is granted to the revision petitioner to pay the amount. So the revision petitioner is directed to pay the amount on or before 16.06.2015, till then, the execution of sentence is directed to be kept in abeyance. Crl. R.P. No.2163 of 2014 9 With the above modification of the sentence alone, the revision petition is allowed in part. Office is directed to communicate this order to the court below, immediately. Sd/- **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss