P.K. Thankappan v. P.S. Sreenivasan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939** **Crl.Rev.Pet.No. 1400 of 2003 ( )** **--------------------------------CRA 160/2000 of ADDITIONAL SESSIONS FAST TRACK COURT- I , PALAKKAD ST 312/1998 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD ------------------** **REVISION PETITIONER/APPELLANT/ACCUSED :** **------------------------------------------------------------------** **P.K.THANKAPPAN, S/O.KARUPPAN, PERINGODE, KONGAD (VIA), PALAKKAD.** **BY ADVS.SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY** **RESPONDENTS/RESPONDENTS/COMPLAINANT :** **--------------------------------------------------------------------** **1. P.S.SREENIVASAN, S/O.SUBRAMANIAN, KALLINGAL HOUSE, GOLDEN STREET, MOOTHANTHARA, PALAKKAD DISTRICT** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.No. 1400 of 2003 ================== Dated this the 20[th] day of October, 2017 **O R D E R** The petitioner herein has been arrayed as accused for offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.C.No. 312/2998 on the file of the Chief Judicial Magistrate's Court , Palakkad, instituted on the basis of a complaint filed by the 1[st] respondent herein. Ext.P-1 dishonoured cheque dated 10.12.1997 is for Rs. 20,000/-. The trial court as per the impugned judgment rendered on 31.7.2000 has convicted the petitioner for the abovesaid offence and has sentenced him to undergo simple imprisonment for one month and has also ordered to pay compensation of Rs. 20,000/- to the complainant under Sec. 357(3) of the Cr.P.C. Aggrieved thereby, the petitioner had preferred Crl.Appeal No. 160/2000 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge, Fast Track-I, Palakkad). The appellate Sessions Court as per the impugned judgment rendered on 17.5.2003 has upheld the conviction and had also confirmed the sentence, thereby dismissed the appeal. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. Crl.R.P.1400/03 - : 2 :- 2. This Criminal Revision Petition was filed as early as on 17.6.2003. This court as per order dated 18.6.2003 had admitted the Revision Petition and had also passed interim order dated 18.6.2003 on Crl.M.A.No. 5990/2003 directing that the execution of the impugned sentence in this case will stand suspended on the petitioner executing bond for Rs. 10,000/- and on furnishing two solvent sureties each for the like sum to the satisfaction of the trial court concerned, etc. and with a further condition that the petitioner shall deposit the entire cheque amount of Rs.20,000/- within 30 days, before the trial court. Subsequently, as per interim order dated 21.7.2003 on Crl.M.A.No. 7231/2003 in Crl.M.A.No. 5990/2003 this Court had granted extension of the said time limit for making the deposit by a further period of 2 weeks with the condition that no further time will be granted. 3. The trial court concerned (Court of Chief Judicial Magistrate, Palakkad) has now furnished a report dated 10.3.2007 before the Registry of this Court intimating that amount of Rs. 20,000/- has been deposited by the petitioner herein in this case on 4.8.2003 in compliance with the abovesaid interim order passed by this Court. The Registry has noted that even till date, process fee has not been remitted by the petitioner so as to take out notice to R-1 (complainant). Hence, even though the learned Prosecutor had taken notice for the 2[nd] respondent State, the petitioner has not cared to take any steps for serving notice on the 1[st] respondent Crl.R.P.1400/03 - : 3 :- complainant. This Court could have dismissed this Revision Petition solely on the ground of non prosecution, as the petitioner has not cured the said vital defect. However, this Court is considering the merits of the matter. 4. Heard Sri.N.Raghuraj, learned counsel appearing for the revision petitioner (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 5. The gist of the allegations in the complaint is to the effect in discharge of the liability of Rs.20,000/- owed by the accused to the complainant, the revision petitioner accused had issued Ext.P-1 cheque dated 10.12.1997 for Rs. 20,000/- drawn from the account of the accused. The cheque when presented by the complainant resulted in dishonour due to insuffiency of funds. Thereupon, the complainant has caused to send Ext.P-4 statutory demand notice dated 26.12.1997 calling upon the accused to pay of the amounts covered by the cheque within 15 days from the date of receipt of the said notice. The notice sent by registered post has been returned undelivered. 6. During the trial, the prosecution has examined P.W-1 (complainant) and P.W-2 (bank Manager) and has marked Exts.P-1 to P7 documents. Ext.X-1 is the ledger extract of the bank concerned in respect of the account of the accused. 7. In evidence, P.W-1 has broadly deposed in tune with the contents in the affidavit regarding the transactions, which led to the Crl.R.P.1400/03 - : 4 :- liability, as well as about the factual aspects regarding the execution and issuance the cheque in question by the accused and its dishonour and subsequent aspects regarding the adherence to the statutory formalities prior to the launching of the prosecution. The main defence taken up the accused was to the effect the statutory demand notice under Sec. 138 proviso (b) has not been served on the accused. It has come out in evidence that Ext.P-4 demand notice dated 26.12.1997 in terms of Sec.138 proviso (b) of the Negotiable Instruments Act has been taken out to the address of the accused by registered post. The said notice has been returned undelivered. By way of abundant caution, the complainant has also taken out similar statutory demand notice under Ext.P-7, under certificate of posting. Except raising the defence submission that the address of the accused in Exts.P-4 and P-5 are wrong, no materials whatsoever have been adduced by the complainant to establish that the said address is wrong and what exactly is his correct address at that point of time. No attempts have been made by adducing evidence through the authorities of the Post office concerned regarding the service of notice. Therefore, going by the dictum laid down by the Apex Court in _**K.Bhaskaran v. Sankaran Vaidhyan Balan**_ , reported in 1999 (7) SCC 510 and the subsequent decisions as in _**C.C.Alavi Haji v. Palappetty Muhammed**_ , reported in (2007) 6 SCC 555, where, the complainant sends the statutory demand notice by registered post in the correct address of the accused, even if it is returned Crl.R.P.1400/03 - : 5 :- undelivered on the ground that the addressee is available or door locked, etc. the sender of the notice is entitled to get the presumption under Sec. 27 of the General Clauses Act, and that it has to be deemed that the said registered notice has been served on the addressee. Of course, the said presumption could be rebutted by the accused by leading concrete evidence to show that the address of the notice was wrong, etc. No such attempt has been made by the accused other than raising such a suggestion. The courts below after carefully evaluating the evidence on record, have concurrently come to the considered conclusion that the accused has executed Ext.P-1 as contemplated under Sec 138 of the Negotiable Instruments Act. In this revisional proceedings this Court can interfere with such findings of conviction only if it is established that such fact findings rendered by the courts below are vitiated by gross perversity or illegality. No such circumstances have been brought to the notice of this Court to establish a strong case of revisional interference. Accordingly, this Court is not inclined to interfere with the considered findings of facts rendered by the courts below regarding the conviction of the petitioner under Sec. 138 of the Negotiable Instruments Act. 8. As regards the question of sentence, it is seen that the trial court has imposed substantive sentence of imprisonment for one month and to pay compensation of Rs.20,000/- (cheque amount) to the complainant under Sec. 357(3) of the Cr.P.C., which has been affirmed by Crl.R.P.1400/03 - : 6 :- the appellate court. However, going by the legal principles laid down subsequently by the Apex Court in the decisions as in _**Damodar S.Prabhu v. Sayed Babalal**_ reported in AIR 2010 SCC 1907, _**Kaushalya Devi v. Roopkishore**_ reported in AIR 2011 SC 2566, etc. it is by now well established that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong, which has been given criminal overtones and that in such cases, the compensatory aspects should be given more priority and emphasis, compared to the punitive aspect and that in such cases, sentence of fine disburasable as compensation to the complainant would be sufficient to meet the ends of justice, taking into consideration the cheque amount, etc. Therefore, unless exceptional and serious circumstances are brought out, which warrant the imposition of the substantive sentence, ordinarily in such cases, the compensatory aspects should be given more emphasis. Accordingly, this Court is inclined to take the view that substantive sentence of one month's imprisonment in this case is rather excessive and the same should be reduced appropriately to imprisonment till rising of the court. However, any such reduction in the substantive sentence imposed on the petitioner accused should be done in such a manner so as to ensure that due and proper justice is rendered to the complainant, who is not even before this Court as the petitioner has not cared to take out notice to that party. Accordingly, it is ordered that the petitioner should pay compensation of Rs. 40,000/- (rupees forty thousand Crl.R.P.1400/03 - : 7 :- only) (twice the cheque amount of Rs. 20,000/-) to the complainant in terms of Sec. 357(3) of the Cr.P.C. The amount already deposited by the petitioner before the trial court in this case could be deducted and the petitioner will have to pay of the balance amount in that regard. Accordingly the following directions and orders are passed: - _(i) The impugned conviction imposed on the petitioner under Sec. 138 of the Negotiable Instruments Act as per the impugned judgments of both the courts below will stand confirmed._ - _(ii) The impugned substantive sentence of one month imprisonment imposed by the impugned judgments will stand modified and reduced to imprisonment till rising of the court._ - _(iii) In supersession of the orders passed by the courts below, it is ordered that the petitioner will pay compensation of Rs. 40,000/- to the complainant in terms of Sec. 357(3) of the Cr.P.C. On default of the petitioner to pay the abovesaid amount, the petitioner will have to suffer simple imprisonment for one month._ - _(iv) The trial court will ensure that the amount already deposited by the petitioner in relation to to this case shall be forthwith released to the complainant after issuance of notice of intimation to that party to receive the said amount. The balance amount to be remitted by the petitioner should also be released by the trial court to the complainant immediately after receiving the said amount._ - _(v) The petitioner shall personally appear before the trial court at 11 a.m. on any day on or before 3.2.2018 to receive the sentence of imprisonment till the rising of the court and to remit the balance compensation amount._ - _(vi) On default of the petitioner to pay the said amount, the petitioner will have to suffer simple imprisonment for one month._ - _(vii) Until 3.2.2018 all further coercive steps that may be taken against the petitioner in pursuance of the execution of the impugned sentence in this case will stand deferred._ The Registry will forward copies of this order to R-1 (complainant) as well as to the trial court. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge Crl.R.P.1400/03 - : 8 :-