P.A. Kaja Hussain v Abubacker Siddhique and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 4TH DAY OF NOVEMBER 2014/13TH KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 1889 of 2014** **--------------------------------** ## **Crl.A.NO. 93/2013 II ADDITIONAL SESSIONS COURT, PALAKKAD. CC 130/2011 OF JUDICIAL FIRST CLASS MAGISTRATE -II,PALAKKAD.** **....** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------------------------------------** **P.A.KAJA HUSSAIN, S/O.MUHAMMED, AGED 53 YEARS, CHEENIKAPARAMBIL HOUSE, POOTHANUR, PALAKKAD DISTRICT.** **BY ADVS.SRI.JACOB SEBASTIAN SMT.SHAMSEERA. C.ASHRAF** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------------------------------------------------------------** **1. ABUBACKER SIDHIQUE, S/O.MOIDEEN PILLA, VALIPARAMBU VEEDU, MANNUR, PALAKKAD-678642.** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1889 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 4[th] day of November, 2014 ## O R D E R Accused in C.C.No.130/2011 on the file of the Judicial First Class Magistrate Court-II, Palakkad, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the first respondent against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 3. The case of the complainant in the complaint was that, accused borrowed a sum of ₹60,000/on 05.05.2010 and in discharge of that liability, he had issued Ext.P1 cheque dated 05.08.2010 and the cheque when presented was dishonoured for the reasons 'funds insufficient' vide Ext.P2 dishonour memo and the same was intimated to the complainant by his banker vide Ext.P3 2 Crl. R. P. No.1889 of 2014 intimation memo dated 12.08.2010. The complainant issued Ext.P4 notice to the revision petitioner intimating the dishonour and demanding payment of the amount and the same was received by the revision petitioner on 27.08.2010 evidenced by Ext.P6 postal acknowledgment. The revision petitioner had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint. 4. 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 P5 were marked on his side. After closure of the complainants 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 3 Crl. R. P. No.1889 of 2014 handed over a blank signed cheque to one Khadeeja, which was mis-used and the present complaint has been filed, but no defence evidence was adduced on the side of the revision petitioner to prove his case. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him to undergo imprisonment, till rising of the court and also to pay a compensation of ₹50,000/-, in default to under simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.93/2013 before the Sessions Court, Palakkad, which was made over to 2[nd] Additional Sessions Court, Palakkad, for disposal and the learned Additional Sessions Judge, allowed the appeal in part, confirming the order of conviction, but modified the sentence, relying on the decision reported in **[2013(4) KLT 350 (S.C.)] Somanath Sarkar v. Utpal Basu Mallick** , imprisonment 4 Crl. R. P. No.1889 of 2014 till rising of court and also to pay fine of 61,000/-, in₹ default to undergo simple imprisonment for two months and if fine is realised, directed to pay 60,000/- as compensation₹ to the complainant under Section 357(1)(b) of the Code. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below. 5. Considering the scope of enquiry involved and the contentions raised, this court felt that, the revision petition can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the 2[nd] respondent, dispensing with notice to the first respondent. 6. The counsel for the revision petitioner submitted that, court below had not properly appreciated the case of the revision petitioner that the cheque given to one Khadeeja was mis-used and the present complaint was filed and he had rebutted the presumption and execution of the cheque was not properly proved by the complainant. 5 Crl. R. P. No.1889 of 2014 Further the sentence imposed is harsh without giving any reason as the fine was enhanced. 7. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below. 8. The case of the complainant in the complaint was that, the revision petitioner borrowed a sum of ₹60,000/-, in discharge of that liability he had given Ext.P1 cheque. The case of the revision petitioner was one of total denial. His case was that, he had no transaction with the complainant and the blank signed cheque given to one Khadeeja was mis-used and the present complaint was filed. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he deposed in support of his case. Though he was cross examined at length, nothing was brought to discredit his evidence on this aspect. Further the revision petitioner had not adduced any evidence to prove his case. He did not send any reply 6 Crl. R. P. No.1889 of 2014 to the notice issued as well. Once the complainant had proved the execution and issuance of cheque, then the presumption under Section 139 of the Act will be attracted, which includes the existence of a legally enforcible debt as well, which was so held in the decisions reported in **Rangappa v. Mohan [2010(2) KLT 682 (S.C.)]** and **K.R. Rathi Kumar v. N.K. Santhamma and Another [2006 (4) KLT 308]** . So in the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption, courts below were perfectly justified in relying on the evidence of PW1 and the presumptions available under Section 139 and 118 of the Act and convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent finding of the court below on facts on this aspect do not call for any interference. 9. As regards the sentence is concerned, the trial court had sentenced the revision petitioner to undergo 7 Crl. R. P. No.1889 of 2014 imprisonment, till rising of the court and also to pay a compensation of 50,000/- to the complainant, in default to₹ undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. But the appellate court relying on the decision reported in **[2013 (4) KLT 350 (S.C.)] Somanath Sarkar v. Utpal Basu Mallick** , wherein it was observed that, award of compensation is not available under Section 138 of the Negotiable Instruments Act and it is only when the court has determined the amount of fine that question was paying compensation out of the same would arise, modified the sentence, confirming the sentence of imprisonment till rising of the court, but converted the compensation to fine of 61,000/-, in default to undergo simple imprisonment for₹ two months and further directed to pay out of the fine ₹60,000/-, as compensation to the complainant under Section 357(1)(b) of the Code. 10. In view of the dictum laid down in the above 8 Crl. R. P. No.1889 of 2014 decisions, considering the amount involved and the fact that the default sentence was reduced to two months from three months and the amount of 61,000/- and further direction to₹ pay 60,000/- out of the fine as compensation cannot be₹ said to be excessive or illegal. So under the circumstances, there is nothing to interfere with the sentence imposed by the court below as well, as it appears to be just and proper. 11. While this court was about to dispose of the revision petition, the counsel for the revision petitioner sought three months time to pay the amount. Considering the amount involved, this court feels that the prayer for time can be allowed and the revision petitioner is granted time till 04.02.2015 to pay the amount. If the revision petitioner pays the amount directly to the complainant and produces proof of such payment and the complainant appears before the court below and acknowledges receipt of the same, then the court below is directed to record the same in the respective registers as substantive compliance 9 Crl. R. P. No.1889 of 2014 of payment of compensation out of fine and receive the balance fine of 1,000/- as provided and permit the revision₹ petitioner to undergo substantive sentence of imprisonment till rising of the court as provided in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another.** With the above direction and observation, the criminal revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss