P. Vijayan v. M. Castelino and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 27TH DAY OF NOVEMBER 2014/6TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 1811 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN Crl. APPEAL NO. 702/2001 of IIND ADDL. SESSIONS COURT, KOZHIKODE, DATED 30-06-2003 & AGAINST THE JUDGMENT IN CC 132/1999 of J.M.F.C.-I, KOZHIKODE, DATED 30-11-2001** ## **REVISION PETITIONER(S):** **--------------------------------------** **P. VIJAYAN, S/O. KUMARAN, H.C.NO.103 RPF, OFFICE OF THE RAILWAY PROTECTION FORCE, KANNUR RAILWAY STATION.** **BY ADV. SRI. P.V.KUNHIKRISHNAN** ## **RESPONDENT(S):** **--------------------------** **1. M. CASTELINO, 5/2461, KUNEPARANILAM PARAMBA, NEAR VETENARY HOSPITAL, CALICUT-1.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.** ## **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 2711-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1811 of 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 27[th] day of November, 2014 ## **O R D E R** Accused in C.C.No.132/1999 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant 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, accused borrowed a sum of 22,000/- and in₹ discharge of that liability he had issued Ext.P1 cheque, which when presented was dishonored for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonour memo. Complainant issued Ext.P3 notice vide Ext.P4 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. He had sent 2 Crl. R. P.No.1811 of 2003 Ext.P6 reply, containing false allegations and he had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments 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 complainant himself was examined as PW1 and Exts.P1 to P7 were marked on his 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 complainant's evidence. He had further stated that, he had borrowed only an amount of 10,000/- and issued a blank₹ signed cheque as security. Though he paid 20,000/-, the₹ cheque was not returned and mis-using the cheque, the present complaint was filed. In order to prove his case, the revision petitioner himself was examined as DW1. After 3 Crl. R. P.No.1811 of 2003 considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months. Aggrieved by the same, the complainant filed Criminal Appeal No.702/2001 before the Sessions Court, Kozhikode, which was made over to 2[nd] Additional Sessions Court, Kozhikode, for disposal, and the same was dismissed by the learned Sessions Judge, confirming the order of conviction and sentence. Dissatisfied with the same, the present revision has been filed by the revision petitioner/ accused before the court below. 4. Notice to the first respondent though sent, it was returned as ‘door closed’. Considering the fact that, the case was of the year 2003, this court felt that, the revision can be disposed of after hearing the counsel for the revision petitioner and Public Prosecutor appearing for the 2[nd] respondent dispensing with further notice to the first respondent. Crl. R. P.No.1811 of 2003 4 5. The counsel for the revision petitioner submitted that, the evidence of DW1 will to show that, he had borrowed only 10,000/- from the complainant and the₹ blank signed cheque given was misused. So he disprove the case of the complainant and he is entitled to get acquittal. 6. Learned Public Prosecutor appearing for the 2[nd] respondent supported the concurrent findings of the court below. 7. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 22,000/-₹ and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that he had borrowed only 10,000/- and he paid 30,000/-, but the₹ ₹ cheque was not returned. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of his case in the complaint. He denied the suggestions that, the revision petitioner borrowed only 10,000/- and issued a blank signed cheque₹ and repaid 30,000/- and he wanted more amount and since₹ Crl. R. P.No.1811 of 2003 5 he was not amenable for the same, mis-using the cheque, the present complaint was filed. 8. It is true that the revision petitioner was examined as DW1. But he had admitted that he had no document to prove that he had paid 30,000/-. He had also₹ not taken any steps against the complainant to get back the cheque or he did not take any steps to issue instruction to the bank to stop payment and inform the same to the complainant as well. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the case of the revision petitioner is not believable or probable and rightly believed the evidence of PW1 and came to the conclusion that the revision petitioner had issued the cheque in discharge of his liability for the amount mentioned in the cheque and rightly convicted him for the said offence under Section 138 of the Act and the concurrent findings of the court below on facts do not call for any interference. 9. As regards the sentence is concerned, the 6 Crl. R. P.No.1811 of 2003 trial court had sentenced the revision petitioner to undergo simple imprisonment for three months, which was confirmed by the appellate court. It may be mentioned here that, the offence under Section 138 is basically of civil nature, but it has become a criminal offence in order to make the drawer of the cheque to pay the amount to give credibility to the cheque issued in the business world by the customers. Further in the decision reported in **Damodar S. Prabhu v. Sayed Babalal H. [JT 2010 (4) (S.C.)457]** , the Hon’ble Supreme Court has held that, imprisonment is not always mandatory in cases under Section 138 of the Act as far as possible, the fine can be imposed to the extend of the compensation payable and that can be paid to the complainant. During 1999, court has no power to impose fine more than 5,000/-. Further in the decision reported in₹ **Suganthi v. Jagadeeshan [2002(1) KLT 581 (SC)]** , the Hon’ble Supreme Court has held that, as the law stood then, though the magistrate has no power to impose fine more than 5,000/-, that will not fetter the right of the₹ 7 Crl. R. P.No.1811 of 2003 magistrate to impose compensation more than 5,000/-.₹ Further the power has been given to the magistrate court to impose more than 5,000/- fine, only by virtue of the₹ Amendment Act, 2002, which came into force from 06.02.2003. So applying the principles laid down in the above decision, this court feels that, fixing the compensation of 30,000/- and reducing the substantive₹ sentence to imprisonment, till rising of the court and providing default sentence of three months will be sufficient and that will meet the ends of justice. So the sentence of three months simple imprisonment imposed by the court below is set aside and the same is modified as follows: The revision petitioner is sentenced to undergo imprisonment till rising of the court and also to pay a compensation of 30,000/- to the complainant, in default to₹ undergo simple imprisonment for two months under Section 357(3) of the Code of Criminal Procedure. Two months time is granted to the revision petitioner to pay or deposit the amount before the court below. If the amount is 8 Crl. R. P.No.1811 of 2003 paid directly to the complainant and the revision petitioner produces proof of payment of the same before that date and the complainant appears before the court below and acknowledges the same, then court below is directed to record the same in the respective register as provided in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another and (2012(4) KLT 21) Sivankutty v. John Thomas and Another** , and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of the court. With the above modification of the sentence and direction, the revision 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