R. Seshan v. State of Kerala and Subramaniyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941** **Crl.Rev.Pet.No.1359 OF 2019** **AGAINST THE JUDGMENT IN CRA 131/2018 OF ADDITIONAL SESSIONS COURT - V, PALAKKAD** **AGAINST THE JUDGMENT IN ST 29/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **R.SESHAN AGED 62 YEARS S/O.RAMACHANDRAN, GURUKULAM(POST), KUZHALMANNAM, ALATHUR TALUK, PALAKKAD DISTRICT, PIN-678541** **BY ADVS. SRI.P.K.MOHANAN(PALAKKAD) SRI.ASHWIN SATHYANATH** ## **RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** **2 SUBRAMANIYAN AGED 69 YEARS S/O.MAYANADI, KAVATHIKODE HOUSE, PULINELLY, POST, KOTTAYI, PALAKKAD DISTRICT, PIN-678571** ## **R1 SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-01-2020, THE COURT ON 14-01-2020 PASSED THE FOLLOWING:** Crl.R.P.No.1359/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1359 of 2019 ---------------------------------------------Dated this the 14[th] day of January, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.29/2016 on the file of the Court of the Judicial First Class Magistrate-I, Palakkad. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of three months and also directed him to pay an amount of Rs.3,00,000/- as compensation to the complainant and ordered that in default of payment of compensation, he shall undergo simple imprisonment for a period of three months. Crl.R.P.No.1359/2019 3 3. The petitioner filed Crl.A.No.131/2018 before the Court of Session, Palakkad challenging the order of conviction and sentence passed against him by the trial court. The learned Additional Sessions Judge confirmed the conviction but modified the sentence to imprisonment till the rising of the court and confirmed the direction to pay compensation to the complainant. 4. The concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court are challenged by the accused in this revision petition. 5. Heard the learned counsel for the revision petitioner. 6. The case of the complainant/second respondent is as follows: The complainant and the accused were friends. The accused had borrowed an amount of Rs.3,00,000/- from the complainant on 06.09.2012. When the complainant demanded the accused to repay the amount, the accused executed and issued a cheque dated 25.05.2013 for Rs.3,00,000/- in discharge of the liability. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no Crl.R.P.No.1359/2019 4 sufficient amount in the account of the accused. The complainant sent notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P11 documents were marked on his side. The accused got himself examined as DW1. 8. When examined as PW1, the complainant gave evidence that the accused had borrowed Rs.3,00,000/- from him and when he demanded repayment of the amount, the accused came to his house with a cheque which was filled up and that the accused signed the cheque in his presence and gave it to him in discharge of the debt. 9. Execution of Ext.P1 cheque by the accused and delivery of it by him to the complainant stand proved by the evidence of PW1. Then, the presumption under Section 139 of the Act comes into play. The question is whether the accused was able to rebut that presumption in any manner. Crl.R.P.No.1359/2019 5 10. The plea of the accused was that he had given a signed blank cheque to his business partner Viswanathan and that the complainant had obtained that cheque from Viswanathan and misused it. 11. When examined as DW1, the accused gave evidence in tune with his plea. But, his evidence in that regard is not reliable and trustworthy for more than one reason. 12. In the first place, the accused could not satisfactorily explain under what circumstances he had given a signed blank cheque to Viswanathan. In the second place, no attempt was made by the accused to examine Viswanathan to prove his plea. In the third place, if he had really given the cheque to Viswanathan, when he received a lawyer notice from a stranger demanding huge amount from him based on such cheque, he would have taken immediate legal action. At least he would have sent a reply to the notice denying liability to pay the amount. No such action was taken by him. 13. The complainant had sent Ext.P4 lawyer notice to the accused demanding payment of the amount of the cheque. The Crl.R.P.No.1359/2019 6 accused had received the notice. Though he had initially taken a plea that he had not received the notice, he admitted in his evidence that he received the statutory notice sent by the complainant. He did not send any reply to the notice. If the complainant was a total stranger to him and if did not owe Rs.3,00,000/- to the complainant and if he had not executed and issued the cheque to the complainant in discharge of such liability and if the complainant had fraudulently obtained the cheque from Viswanathan, the accused would have definitely sent a reply to the statutory notice. He would not have remained silent and inactive on receiving lawyer notice from a stranger demanding a huge amount from him. The fact that the notice of demand, though duly received and acknowledged by the accused, did not evoke any response from him is a crucial circumstance against him. The very fact that the accused failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there is merit in the complainant's version (See **Rangappa v. Mohan : AIR 2010 SC 1898** ). Crl.R.P.No.1359/2019 7 14. There is primarily the evidence of the complainant to explain the circumstances under which he came into possession of the cheque, admittedly drawn on a cheque leaf issued to the accused by his bank to operate his account. The plea raised by the accused with regard to the possession of his cheque by the complainant is not probable and the evidence adduced by him in support of such plea is not reliable. The fact that the accused has no reasonable and probable explanation as to how the cheque travelled from his possession to that of the complainant is certainly a crucial aspect while considering the acceptability of the evidence of the complainant. 15. When examined as PW1, the complainant could not give details of the family members of the accused and about his personal matters except that the accused was conducting a school. Ignorance of the complainant with regard to the personal matters of the accused does not lead to an inference that the accused was a total stranger to him. Many persons who are closely acquainted with each other may not know the personal matters or the details of the family members of each other. Crl.R.P.No.1359/2019 8 16. The accused had advanced the plea that the complainant had no financial capacity to lend an amount of Rs.3,00,000/-. The complainant produced documents to prove that he had sold property and the amount was with him. The complainant is not required to prove the debt as if in a civil case (See **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287)** . Even absence of documentary evidence to show the source of funds with the complainant to advance the loan is not a relevant consideration in view of the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the Act (See **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876).** 17. The courts below have properly analysed and appreciated the evidence in the case and reached the correct conclusion regarding the execution and issuance of the cheque by the accused to the complainant and the inability of the accused to rebut the presumption under Section 139 of the Act. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings entered by the courts below. In such Crl.R.P.No.1359/2019 9 circumstances, conviction of the accused for the offence punishable under Section 138 of the Act is only to be confirmed. 18. Coming to the question of sentence, the appellate court has taken a very lenient view and the sentence imposed on the accused by that court does not warrant any interference. 19. In the result, the revision petition is dismissed. However, the petitioner/accused is granted a period of four months from today to pay the amount of compensation awarded to the complainant. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr TRUE COPY PS TO JUDGE