Rajan Nambeesan K.P. v. Sunil Kumar P and The State of Kerala

FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940 CRA 834/2008 of SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES)KOZHIKODE DATED 15-11-2010 ST 1497/2006 of SPL.J.M.F.C. FOR TRIAL OF MARADU CASES, KOZHIKODE ## REVISION PETITIONER(S) RAJAN NAMBEESAN K.P, S/O.KUNHIKRISHNAN NAMBEESAN,KRISHNA VIHAR,, MADATHIL PO,IRITTY,KANNUR DT. BY ADV.SRI.E.NARAYANAN RESPONDENT(S): 1. SUNIL KUMAR P, S/O.RADHAKRISHNAN NAIR, SUNIL NIVAS,, SOUTH ROAD,PONNANI P.O, MALAPPURAM. 679 577 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.V.KUNHIKRISHNAN BY PUBLIC PROSECUTOR SRI. B. JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## B. SUDHEENDRA KUMAR, J. -------------------------- ## Crl.R.P. No. 473 of 2011 ------------------------ Dated this the 23[rd] day of March, 2018 ## ORDER The revision petitioner was convicted and sentenced by the courts below under Section 138 of the N.I.Act. ## 2. Heard. 3. The case of the complainant is that the revision petitioner borrowed an amount of Rs. 2,00,000/from the complainant and towards the discharge of the said liability, the revision petitioner issued Ext. P1 cheque in favour of the complainant. 4. The revision petitioner had a contention that the cheque in question was issued by him to one Swami Crl.R.P. No. 473 of 2011 -2- at Bangalore in connection with some other transaction and the said cheque had been misutilised by the complainant to file the present complaint. However, apart from the said suggestion to PW1, there is absolutely no material before the court to indicate that the cheque in question was handed over by the complainant to the said Swami. 5. The learned counsel for the revision petitioner has argued that since the complaint and the lawyer notice did not mention about the details of the transaction, which resulted in the issuance of Ext. P1 cheque, the conviction and sentence passed by the courts below cannot be sustained. The learned counsel relied on the decision of the learned Single Judge in Divakaran v. State of Kerala [2016 (4) KLT 233] to support his Crl.R.P. No. 473 of 2011 -3- argument. The Division Bench of this Court in Devan v. Krishna Menon [2010 (2) KLT 397] held that mere pointing out of some innocuous inconsistency between the real nature of transactions and the pleadings regarding such transactions, in the complaint and notice, would not be sufficient to hold that burden of the accused is discharged. It was further held in Devan (supra) that if the nature of the transaction is clear from the evidence of the complainant and the documents, notwithstanding the innocuous inconsistency between the real nature of the transactions and the pleadings in the complaint and the notice, the burden of the accused under Section 139 of the N.I.Act is not discharged. In this case, PW1 clearly stated about the transaction which resulted in the issuance of Ext. P1 cheque. Therefore, the argument in this regard Crl.R.P. No. 473 of 2011 -4- does not hold good. 6. The learned counsel for the revision petitioner has further argued that the complainant did not produce any evidence to prove that the complainant had the capacity to advance the amount and hence, the conviction and sentence cannot be sustained. The evidence of PW1 would clearly show that PW1 was conducting a partnership business and the said partnership business was dissolved in the year 2004. T hereafter, PW1 received money during the last month of 2005 in connection with the dissolution of the partnership. Out of the said amount, PW1 advanced money to the revision petitioner. Thus, PW1 clearly explained how he could raise the money to pay the amount to the revision petitioner. The amount in this case was given to the Crl.R.P. No. 473 of 2011 -5- revision petitioner in January, 2006. In view of the above evidence, I am convinced that PW1 had sufficient capacity to advance the amount of Rs. 2,00,000/- covered by Ext. P1 cheque to the revision petitioner. 7. When this case stood posted for hearing on 19-1-2018, the learned counsel for the revision petitioner pleaded for a remand of the case to enable the revision petitioner to prove the actual reason for the dishonour of Ext. P1 cheque, as the said cheque was dishonoured with the endorsement “refer to the drawer”. This Court directed the Bank Manager to produce the account details of the revision petitioner. Accordingly, the account details have been produced, which would show that the revision petitioner closed the account on 31-3-2004. Ext. P1 cheque is dated 5-4-2006. This would show that the Crl.R.P. No. 473 of 2011 -6- revision petitioner was well aware that the cheque was dishonoured as there was no amount in his account to honour the cheque as the account had been closed by the revision petitioner even prior to the issuance of the cheque. Therefore, it is clear that the intention of the revision petitioner in seeking for the remand was to procrastinate the final disposal of the case. 8. Having gone through the relevant inputs, I am satisfied that the courts below correctly appreciated the oral and documentary evidence adduced by the complainant and concurrently found that the revision petitioner executed Ext. P1 cheque as contemplated under Section 138 of the N.I.Act and committed the offence under Section 138 of the N.I.Act, rejecting the contentions of the revision petitioner. No material is Crl.R.P. No. 473 of 2011 -7- available before the court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the offence under Section 138 of the N.I. Act does not warrant any interference by this Court. 9. Considering the facts and circumstances of the case, including the amount covered by Ext. P1 cheque, the sentence awarded by the courts below stands modified and reduced to imprisonment till the rising of the Court and a fine of Rs. 2,00,000/- (Rupees two lakhs only) with a default clause for simple imprisonment for one month to meet the ends of justice. It is ordered accordingly. If the fine is realised, the entire amount shall be given to the Crl.R.P. No. 473 of 2011 -8- complainant as compensation under Section 357(1)(b) Cr.P.C. Needless to state that if the revision petitioner had already deposited any amount before the trial court pursuant to the direction of this Court, the said amount shall be treated as part payment of the fine. The revision petitioner is granted six months to pay the fine as requested by the learned counsel for the revision petitioner. ## B. SUDHEENDRA KUMAR, JUDGE . **Ani/26/03**