P.S. Muhammed v. K.A. Paulose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 10TH DAY OF MAY 2016/20TH VAISAKHA, 1938** ## **Crl.Rev.Pet.No. 627 of 2016** **---------------------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO.126/2014 OF ADDITIONAL DISTRICT AND SESSIONS COURT, NORTH PARAVUR DATED 08-01-2016** **AGAINST THE JUDGMENT IN C.C.NO.197/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA DATED 29-01-2014** **---------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **----------------------------------------------------------------------------** **P.S.MUHAMMED, AGED 46 YEARS, S/O.P.E. SAITHU MUHAMMED, PAZHAMPILLIL HOUSE, PROPRIETOR, PAZHAMPILLIL HARDWARES, ADIVAD, POTHANIKKAD, KOTHAMANGALAM.** ## **BY ADV. SRI.JAISON JOSEPH** ## **RESPONDENT(S)/COMPLAINANT & STATE :** **-----------------------------------------------------------------** **1. K.A.PAULOSE, S/O.ANTONY, KACHAPPILLY HOUSE, ANGAMALAY- 683 572.** **2. STATE OF KERALA,** - **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADVS. SRI.C.A.CHACKO SMT.NEETHU.G.NADH R2 BY PUBLIC PROSECUTOR SRI.R.RENJITH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **K.RAMAKRISHNAN, J.** **= = = = = = = = = = = = = Crl.R.P.No.627 of 2016** ## **= = = = = = = = = = = = = = Dated this the 10th day of May, 2016** ## **O R D E R** Accused in C.C.No. 197/2010 on the file of Judicial First Class Magistrate-II, Aluva is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent herein against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act (herein after referred to as 'the Act'). 2. The case of the complainant in the complaint was that he was the sole proprietor of M/s. Gaylord Metals, Angamaly South, engaged in the business of steels and metals and he purchased articles on credit basis and an amount of Rs.21,28,340/- was due of which he had paid Rs.16,80,331/- by instalments and there was a balance of Rs. 4,48,009/-. In discharge of that liability, he had issued Exts.P1 and P2 cheques namely cheque No.530373 dated 08.11.2008 for Rs.2,32,923/- and the cheque No.530371 dated 10.11.2008 for an amount of 2 **Crl.R.P.No.627 of 2016** Rs.2,15,078/- both drawn on Canara Bank, Adivadu Branch, in favour of the complainant. The complainant presented the cheques for collection and the same were dishonoured for the reason “funds insufficient” evidenced by Exts.P3 and P4 dishonour memos and that was intimated to the complainant by his banker vide Ext.P5 memo. The complainant issued notice evidenced by Ext.P6 postal receipt and the same was received by the accused evidenced by Ext.P7 postal A/D card. He had sent Ext.P8 reply with false allegations. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. 3. When the accused appeared before the court below, the particulars of offence was 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 P8 were marked on his side. After course of the complainant's evidence, the accused was questioned under Section 313 3 **Crl.R.P.No.627 of 2016** (3)(b) of the Code of Criminal Procedure (hereinafter called 'the Code') and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he was having business transaction with the complainant from 2007 onwards and two blank signed cheques were given as security which were misused and the present complaint has been filed. In order to prove his case, the accused himself was examined as DW1. After considering the evidence on records, the court below found the appellant guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay a compensation of Rs.4,48,001/- to the complainant and in default to undergo simple imprisonment for three months more under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner/accused in the Court below filed Criminal Appeal No.126/2014 before the Principal Sessions Court, Ernakulam, which was made over to 4 ## **Crl.R.P.No.627 of 2016** Additional Sessions Court, North Paravur, for disposal. 4. The learned Additional Sessions Judge, by impugned judgment, dismissed the appeal confirming the order of conviction and sentence passed by the court. Aggrieved by the same, the present revision has been filed. Since the first respondent had entered appearance through counsel and also considering the nature of defence and enquiry to be conducted, this Court felt that the revision can be admitted and disposed of on merits today itself. So the revision is admitted and heard and disposed of, today itself. 5. Heard Sri. Jaison Joseph, counsel appearing for the revision petitioner and Ms. Neethu G. Nadh, counsel representing Sri.C.A. Chacko, counsel appearing for the first respondent and Sri.R.Ranjith Public Prosecutor appearing for the second respondent. 6. Counsel for the revision petitioner submitted that the court below has not properly appreciated the evidence of DW1 and his evidence will go to show that he 5 **Crl.R.P.No.627 of 2016** had rebutted the presumption under Section 139 of the Act. According to the learned counsel, the conviction entered is not proper. It is also submitted that if for any reason, this Court is not inclined to interfere with the conviction, he prayed for leniency in sentence as the substantiate sentence imposed is harsh, especially when the cheque amount has been awarded as compensation. 7. On the other hand, the learned counsel for the respondent submitted that the courts below have properly appreciated the evidence and rightly convicted the revision petitioner and no interference is called for. It is also submitted that considering the amount involved and also the conduct of the accused, the sentence also cannot be said to be excessive. 8. The case of the complainant in the complaint was that he was conducting a business by name M/s. Gaylord Metals, Angamaly South, engaged in the business of steels and metals and the accused used to purchase articles on credit. According to him, an amount 6 **Crl.R.P.No.627 of 2016** of Rs.21,28,340/- was due and the accused had paid Rs.16,80,331/- by instalments and an amount of Rs.4,48,009/- was due and in discharge of that liability, when demanded, he had issued Exts.P1 and P2 cheques for the said amount which when presented were dishonoured for the reason “funds insufficient” and in spite of the notice issued, he had not paid the amount. The accused had admitted the fact that he is having business transaction with the complainant and also according to him, he had given two blank signed cheques as security when he entered into business transaction and those two cheques were misused and the present complaint was filed. He had also sent a reply notice stating these facts. In order to prove the case of the complainant, the complainant himself was examined as DW1 and he deposed in support of his case in the complaint. Though, he was cross-examined at length, nothing was brought out to discredit his evidence on this aspect. He had also stated that the accused had brought 7 **Crl.R.P.No.627 of 2016** the cheques duly filled and signed and delivered the same to him. 9. Though the accused was examined as DW1, he had admitted that the amounts were due to the complainant as per the accounts. But he has also admitted that he is maintaining accounts regarding the transactions showing the amount due. But he had not produced any document to prove that fact. Since he is conducting business and maintaining accounts, then the best evidence could have been to produce the account to show the amount due to the complainant or discharge of the amount due to him which he had not done. Once the signature and the cheque is admitted, then the burden is on the accused to prove that it was not issued in discharge of any liability but for some other purpose and the evidence adduced on his side is not sufficient to discharge his burden to rebut the presumption under Section 138 of the Act. Further, according to him, he had paid the entire amount and the cheques were not 8 **Crl.R.P.No.627 of 2016** returned. But he had not taken any steps against the complainant for non-return of the cheques, except sending reply notice. So under the circumstances, the courts below are perfectly justified in coming to the conclusion that the evidence adduced on the side of the accused is not sufficient to rebut the presumption under Section 139 of the Act and rightly came to the conclusion that the complainant had proved his case and since the accused had not paid the amount in spite of the notice issued, rightly convicted him for the offence under Section 138 of the Act and the concurrent findings of the court below do not call for any interference. 10. As regards the sentence is concerned, the trial court had sentenced him to undergo simple imprisonment for one year and also to pay a compensation for Rs.4,48,001/- to the complainant and in default to undergo simple imprisonment for three months under Section 357(3) of the Code and this was confirmed by the appellate court. In the decision reported in 9 **Crl.R.P.No.627 of 2016** **Damodar.S.Prabhu v. Sayed Babalal.H [JT 2010 (4) SC 457 = 2010 (5) SCC 663],** the Supreme Court has held that though the offence under Section 138 of the Act is basically of civil nature and it has become a criminal offence by virtue of incorporation of the section under the Act, so as to maintain the credibility of the issuance of Negotiable Instruments in the business transactions. But at the same time, the Supreme Court has held that the purpose of the Act is to enable the drawer of the cheque to pay the amount and not to send him to jail in case of default. The Supreme Court has held in that case, in such circumstances, ordering compensation out of fine amount to the tune of the cheque amount or amount to be fixed by the Court with minimum sentence of imprisonment till rise of court will meet the ends of justice as far as both parties are concerned. Further the decision reported in [ **Somanath Sarkar v. Utpal Basu Mallick [2013 (4) KLT 350 (SC)** , the Supreme Court has held that the court has no power to award compensation for offences 10 **Crl.R.P.No.627 of 2016** punishable under Section 138 of the Act but the court has power to impose double the cheque amount as fine and after imposing, fine the compensation payable can be fixed by the court. 11. So considering the circumstances, this Court feels that the fine amount can be enhanced to Rs.5,00,000/- with default sentence of six months and the substantiate sentence can be reduced to imprisonment till rising of court and directing the fine amount as compensation payable to the complainant under Section 357(1)(b) of the Code will be sufficient and that will meet the ends of justice. So the sentence imposed by the court below and confirmed by the appellate court are set aside and the same is modified as follows: i) The Revision Petitioner is sentenced to undergo imprisonment till rising of the court and also to pay a fine of Rs.5,00,000/- and in default to undergo simple imprisonment for six months. ii) If the fine amount is realised, the entire fine 11 **Crl.R.P.No.627 of 2016** amount be paid to the complainant as compensation under Section 357(1) (b) of the Code. iii) Six months time is granted to the revision petitioner to pay the amount and serve the substantive sentence. iv) The revision petitioner is directed to pay the amount on or before 10.10.2016 and serve the sentence and till then the execution of sentence is directed to be kept in abeyance. v) If any amount has already been deposited and permitted to be withdrawn by the complainant as part of suspending the sentence either by this Court or by the appellate court, then the same is directed to be adjusted towards this amount and the accused is liable to pay only the balance amount in compliance with the mode of payment of fine as directed by this Court. With the above modification in sentence alone and granting time, the revision is allowed in part and disposed of accordingly. Office is directed to 12 **Crl.R.P.No.627 of 2016** communicate this judgment to the concerned **c** ourt immediately. **Sd/K.RAMAKRISHNAN, JUDGE** _rsr_