P.V. Surendran v. Johny S/o Marokky Abraham and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932** **Crl.Rev.Pet.No. 477 of 2011()** **-----------------------------** **CRA.630/2007 of 1ST ADDL. SESSIONS COURT, THRISSUR CC.1048/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD ....................** ## **REVISION PETITIONER(S): APPELLANT/ACCUSED:** **---------------------------------------------------------------------------** **P.V.SURENDRAN, S/O.LATE P.K.VELAYUDHAN, HOUSE NO.1/181, CHAMUNDESWARI ROAD, PUTHENPALLY P.O. (VIA) GURUGAYOOR, CHAVAKKAD TALUK, TRISSUR DISTRICT.** **BY ADV. SRI.BABU CHERUKARA** ## **RESPONDENT(S): RESPONDENT/COMPLAINANT:** **--------------------------------------------------------------------------** **1. JOHNY S/O. MAROKKY ABRAHAM, KAPPIYOOR DESOM, POOOKKODE VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680 506.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **V.K.MOHANAN, J. --------------------------------------------Crl.R.P.No. 477 of 2011 --------------------------------------------Dated this the 1[st] day of March, 2011** ## **O R D E R** The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the revision petitioner/accused is that towards the discharge of the liability due to the complainant, the accused issued a cheque dated 15.8.2003 for a sum of Rs.1,50,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the ## **Crl.R.PNO. 477 of 2011** ## **:-2-:** Judicial First Class Magistrate Court, Chavakkad whereupon C.C.No.1048 of 2003 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P15 and the oral evidence of himself as PW1. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 to D11 were marked. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus, accordingly, the court held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple ## **Crl.R.PNO. 477 of 2011** ## **:-3-:** imprisonment for three months and also further directed to pay compensation of Rs.1,50,000/- and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 10.1.2011 in Crl.A.No.630 of 2007, the court of the Ist Additional Sessions Judge, Thrissur dismissed the appeal confirming the conviction and sentence. It is the above conviction and sentence challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner submitted that the cheque in question is the one which is entrusted with the Niramala Kuri Company when the accused subscribed kuri No.20 as a blank cheque towards the security. Counsel submitted that the revision petitioner ## **Crl.R.PNO. 477 of 2011** ## **:-4-:** had remitted the chitty instalments and due to the loss, the chitty company was closed during the year 2000. It is the further submission of the learned counsel that the cheque in question, which is entrusted with the kuri company, was stolen by the complainant who was also one of the Directors of the said company. Thus, according to the learned counsel, there is no transaction between the revision petitioner and the complainant. These are all facts which are properly considered by the trial court as well as the appellate court. The learned Magistrate, while appreciating the evidence of DW1, has observed that DW1 was the Managing Partner of the firm and it was, he who was dealing with all the chitty transaction of the firm at that point of time. It was further observed that when he was asked about the circumstances under which the complainant happened to issue the document to the accused, he had no satisfactory answer. The learned Magistrate further observed that it is difficult to believe ## **Crl.R.PNO. 477 of 2011** ## **:-5-:** that a firm, which obtains blank documents from its customers, used to issue receipts for the same. DW1 during cross-examination deposed that he is not in good terms with the complainant from the year 2000. The learned Magistrate continued to observe that DW1 admitted that Ext.A14 notice is issued by the complainant to him and when he was asked about a petition filed by the complainant before this Court for police protection against him, he pretended ignorance. Thus, it is on the basis of the above evidence and materials, the trial court refused to believe Ext.D7 letter stating that the cheque in question was taken by the complainant. It is also relevant to note that though in Ext.P4 notice, the complainant has mentioned that the amount in question is given to the revision petitioner out of friendship between themselves, there is no denial in Ext.P7 reply about the same. It is also relevant to note that from the facts and circumstances referred to by the learned Magistrate, it appears that the revision petitioner preferred ## **Crl.R.PNO. 477 of 2011** **:-6-:** complaint against the complainant alone, though there is a case raised by the revision petitioner that the cheque was entrusted with the kuri company, no action is taken against other partners. It is also relevant to note that the learned Magistrate had also observed that even though the revision petitioner has got Ext.D7 letter, no step was taken by him and he has not approached the banker with a request not to honour the cheque in question. Thus, going by the judgments of the courts below, it appears that the courts below refused to accept the case of the defence as the same was a false one. Whereas the courts below found that the case of the complainant is established in the light of the evidence appreciated and referred to by the courts below. So, the above factual finding, according to me, deserves no interference since nothing is brought on on record to show that the findings of the courts below are perverse or illegal. Therefore, the conviction recorded against the revision petitioner under Section 138 of the N.I.Act is confirmed. ## **Crl.R.PNO. 477 of 2011** ## **:-7-:** 6. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that the sentence imposed on the revision petitioner is highly arbitrary and exorbitant. From the orders of the courts below, it appears that there is already a direction directing the revision petitioner to pay compensation to the complainant and the amount is fixed as equal to the amount covered by the cheque in question. Having regard to the facts and circumstances involved in the case, and in the light of the decision of the Apex Court reported in **Damodar.S.Prabhu** v. **Sayed Babalal.H.** [JT 2010(4) SC 457] wherein it was held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires reconsideration. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision ## **Crl.R.PNO. 477 of 2011** **:-8-:** petitioner under Section 138 of the N.I.Act as recorded by the trial court which is confirmed by the appellate court. Accordingly, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is modified and reduced to one day simple imprisonment i.e., till the rising of the court. The direction to pay compensation, the compensation amount and the default sentence are confirmed. The petitioner is granted one month time from today to pay the compensation amount and in default, the revision petitioner is directed to undergo simple imprisonment for a period of three months as ordered by the court below. Accordingly, the revision petitioner is directed to appear before the trial court on **1[st] April, 2011** to receive the modified sentence and to pay the compensation amount. If there is any failure on the part of the revision petitioner to receive the sentence and to pay the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision ## **Crl.R.PNO. 477 of 2011** ## **:-9-:** petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till **1[st] April,2011.** Learned counsel for the revision petitioner submitted that the petitioner had already deposited a sum of Rs.30,000/- in the trial court in terms of the order passed by the appellate court when the execution of sentence was suspended. If that be so and if the said amount is retained in the trial court, the petitioner need to deposit a further sum of Rs.1,20,000/- towards the compensation amount. **V.K.MOHANAN, Judge** . MBS/ ## **Crl.R.PNO. 477 of 2011** **:-10-:** As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that some breathing time may be granted to revision petitioner to pay the compensation amount. In the light of the facts and circumstances of the case, I am of the view that the said submission requires positive consideration. The cheque in question is dated 2.4.2004 that too for an amount of Rs.43,000/-. The trial court though sentenced the revision petitioner to undergo six months simple imprisonment, the appellate court reduced the same to one day simple ## **Crl.R.PNO. 477 of 2011** ## **:-11-:** imprisonment. Having regard to the above facts and circumstances and in the light of the decision reported ........., I am of the view that while granting some time, the compensation amount can be enhanced. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of RS.60,500/- to the complainant as compensation under Section 357(3) of the CrP.C. within three months from today and in default, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to **Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the** ## **Crl.R.PNO. 477 of 2011** **:-12-:** **complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so.** 6. Learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement in the amount of compensation. Accordingly, this Criminal Revision Petition is ## **Crl.R.PNO. 477 of 2011** ## **:-13-:** disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment now ordered by the lower appellate court is confirmed and the compensation amount is enhanced to Rs.,000/- which shall be paid by the revision petitioner within three months from today and in case of any default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for three months and on realisation of the compensation amount, the entire amount shall be paid to the complainant under Section 357(3) of the Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on **. .2011** to receive the sentence and to deposit the compensation amount. In case of any failure on the part of the revision petitioner in appearing before the trial court and making the deposit of compensation amount on the above date, the trial court is free to take coercive steps to secure the ## **Crl.R.PNO. 477 of 2011** **:-14-:** presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the petitioner shall be deferred till **. .2011** . **V.K.Mohanan, Judge.** MBS/ ## **Crl.R.PNO. 477 of 2011** **:-15-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T ## **Crl.R.PNO. 477 of 2011** **:-16-:** DATED: -2-2010