P.V. Venugopal v. K.V. Mathew and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 3240 of 2008() -----------------------------CRA.168/2007 OF ADDL.SESSIONS COURT, THODUPUZHA ST.813/2004 OF JUDL.FIRST CLASS MAGISTRATE COURT, NEDUMKANDOM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- P.V.VENUGOPAL, PUTHENPURAKKAL HOUSE, BRANCH MANAGER, K.S.F.E. THALAYOLAPARAMBU BRANCH, KOTTAYAM DISTRICT. BY ADV. SRI.VISHNU.R ## RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------- 1. K.V.MATHEW, COCHUKUDIYIL HOUSE, KATTAPPANA VILLAGE, IDUKKI DISTRICT. ## 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **M. SASIDHARAN NAMBIAR, J.** -----------------------------------------CRL.R.P. NO.3240 OF 2008 -----------------------------------------Dated this the 22[nd] day of September, 2008 ## **O R D E R** Petitioner is the accused and first respondent the complainant. Petitioner was concurrently convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Case of the first respondent is that during the second half of January 2004, petitioner borrowed Rs.2,00,000/from first respondent agreeing to repay the same within two months and towards its repayment issued Ext.P1 cheque drawn in his account maintained in Kattappana branch of Idukki District Co-operative Bank and when the cheque was presented for encashment, it was dishonoured under Ext.P2 and immediately Ext.P3 notice was sent demanding the amount covered by the dishonoured cheque and it was received by petitioner under Ext.P4, but he failed to pay the amount and did not send a reply also thereby committed the offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Case of the petitioner is that he did not borrow any 2 CRRP3240/08 amount from the first respondent and did not issue cheque to him. The case is that he had borrowed some amount from Advocate Benny Thomas, who was having a joint office with the first respondent and at the time of that transaction a blank cheque was issued to Adv.Benny Thomas and subsequently petitioner paid the amount due to Benny Thomas, but demanding interest, he did not return back the cheque and misusing the cheque the complaint is lodged and petitioner did not commit the offence under Section 138 of Negotiable Instruments Act. 2. Learned Magistrate on the evidence of first respondent as PW1 and Exts.P1 to P4 and D1 to D3 found that Ext.P1 cheque was issued towards repayment of the amount borrowed and it was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities. He was therefore convicted and sentenced to simple imprisonment for three months in addition to compensation of Rs.2,00,000/-. Petitioner challenged the conviction and sentence before the Additional Sessions Court, Thodupuzha. Learned Sessions Judge on re-appreciation of the evidence confirmed the finding of the learned Magistrate but modified the sentence to CRRP3240/08 3 imprisonment till rising of the Court in addition to the compensation of Rs.2,00,000/- and in default simple imprisonment for three months. The conviction and sentence is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner was heard. 4. The argument of the learned counsel is that Courts below did not properly appreciate the evidence and on the evidence it should have been found that Ext.P1 cheque was not issued to the first respondent and that too towards repayment of the amount due. It was argued that from the evidence it is clear that Ext.P1 cheque was issued as a blank cheque to Adv.Benny Thomas, who was sharing the office with first respondent and though the amount was repaid, the cheque was not returned and misusing that cheque the complaint was lodged. The learned counsel argued that evidence of PW1 should not have been believed and when it is admitted that he and his mother had borrowed amounts from K.S.F.E. and revenue recovery proceedings were initiated for realization of that amount, it cannot be believed that first respondent will grant a loan to the petitioner and that too for Rs.2,00,000/-, and therefore the 4 CRRP3240/08 conviction is unsustainable. Learned counsel argued that in any case the modified sentence awarded by the Sessions Judge is not sustainable as a default sentence is provided for the compensation paid. Relying on the decision of the Apex Court in **Ahammedkutty v. Abdullakoya (2008(1)KLT 851)** it was held that the default sentence for the compensation awarded under Section 357(3) of Cr.P.C. is unsustainable and that portion of sentence is to be set aside. 5. Though petitioner contended that Ext.P1 cheque was not issued to first respondent and it was issued as a blank cheque to Adv.Benny Thomas, the trial Court and appellate Court on appreciation of the evidence of first respondent as PW1 and petitioner as DW1 believed the case of first respondent and found that Ext.P1 cheque was issued towards the amount borrowed by the petitioner. The question is whether that finding of fact by the Courts below is perverse warranting reappreciation of the evidence in exercise of the revisional powers of this Court. As rightly found by the Courts below, if petitioner had issued Ext.P1 cheque as a blank cheque to Adv.Benny Thomas and that too after re-payment of the amount due to Benny Thomas and the cheque was not returned back and he 5 CRRP3240/08 received Ext.P3 notice sent by first respondent contending that the cheque was issued towards the amount borrowed by the petitioner, he would definitely send a reply disputing the issuance of the cheque. The very fact that petitioner did not send a reply to Ext.P1 casts serious doubt on the correctness of the case projected by the petitioner. Though learned counsel argued that subsequent to the dismissal of the appeal, petitioner had obtained document establishing that the amount borrowed by first respondent from K.S.F.E. is yet to be paid and therefore case of the first respondent that he granted a loan of Rs.2,00,000/- cannot be believed, the fact that some other loan payable by PW1 is outstanding, it cannot be said that petitioner will not borrow the amount from first respondent or first respondent cannot grant the loan. Therefore on that ground it is not possible to hold that petitioner did not borrow the amount or first respondent did not grant the loan. On appreciation of the evidence in the proper perspective it cannot be said that the view taken by the trial Court and the appellate Court on appreciation of evidence is not a possible or reasonable one that could be taken on the evidence. Therefore, I do not find any reason to interfere with the finding of the Courts below that 6 CRRP3240/08 Ext.P1 cheque was issued towards discharge of the existing liability. 6. The fact that Ext.P1 cheque was presented before bank within the period and it was dishonoured for want of sufficient funds and first respondent complied with all the statutory formalities are not disputed. In such circumstances conviction of the petitioner is perfectly legal and correct and warrants no interference. 7. Then the question is on the legality of the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of Court in addition to the compensation under Section 357(3) of Cr.P.C. The argument of the learned counsel relying on Ahammedkutty’s case (supra) is that as default sentence cannot be provided for the compensation payable under Section 357(3), that portion of sentence is to be set aside. True. In view of the decision of the Apex Court in Ahammedkutty’s case the default sentence for the compensation payable is unsustainable. But, if the sentence is modified to imprisonment till rising of Court and a fine of the compensation amount awarded by appellate Court, it cannot be said that default sentence cannot be legal. Therefore the sentence awarded by the learned 7 CRRP3240/08 Sessions Judge is modified as imprisonment till rising of the Court and a fine of Rs.2,00,000/- and in default to imprisonment for two months. If the fine amount is realised, it is to be paid as compensation to first respondent under section 357(1) of Cr.P.C. In that event first respondent is bound to adjust the compensation amount towards the amount due from the petitioner for which admittedly a civil suit was instituted by first respondent. ## **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-