Rajathilakan v. M/S Sree Gokulam Chits and Finance Pvt. Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 10TH DAY OF DECEMBER 2014/19TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 2059 of 2014 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A 246/2011 of II ADDL. SESSIONS COURT,TRIVANDRUM DATED 07-08-2014** **AGAINST THE JUDGMENT IN ST 946/2007 of J.M.F.C.-IV, NEDUMANGAD DATED 30-04-2011** **REVISION PETITIONER/APPELLANT/ACUSED:** **----------------------------------RAJATHILAKAN, POLICE QUARTERS NO.1, D-2, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **BY ADVS.SRI.BIJU BALAKRISHNAN SMT.V.S.RAKHEE SMT.PRINCY XAVIER** **RESPONDENTS/RESPONDENTS/COMPLAINANT: ----------------------------------** **1. M/S.SREE GOKULAM CHITS AND FINANCE PVT.LTD., GOKULAM TOWERS, 66 ARCOT ROAD, KODAMPAKKOM, CHENNAI-2, REP. BY ITS MANAGING DIRECTOR A.M. GOPLAN, THROUGH HIS POWER OF ATTORNEY HOLDER K. HARI KUMAR.** **2. STATE OF KERLA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.2059 of 2014 .................................................. Dated this the 10[th] day of November, 2014. ## **O R D E R** The accused in S.T.No.946/2007 on the file of the Judicial First Class Magistrate Court-IV, Nedumangad is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant through their power of attorney holder against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner was a subscriber to the three chitties conducted by the complainant concern and he had committed default and an amount of Rs.2,39,000/- was due and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo and that was intimated to the complainant vide Ext.P3 intimation memo. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt intimating dishonour and demanding payment of the amount 2 Crl.R.P.No.2059 of 2014 and the same was returned with endorsement unclaimed. The revision petitioner had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act . Hence the complaint. 3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the power of attorney holder of the complainant was examined as PW1 and another witness was examined as PW2 and Exts.P1 to P7 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had not issued any cheque in discharge of the liability as claimed and the blank signed cheque given as security was misused and the present complaint was filed. No evidence was adduced on his side in defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay Crl.R.P.No.2059 of 2014 3 the cheque amount of Rs.2,39,000/- to the complainant as compensation, in default to undergo simple imprisonment for three months under Section 357 (3) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.No.246/2011 before the Sessions Court, Thiruvananthapuram which was made over to the Second Additional Sessions Court, Thiruvananthapuram for disposal and the learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction but modified the sentence till the rising of court and also to pay fine of Rs.2,39,000/-, in default to undergo simple imprisonment for four months and further directed to pay fine amount as compensation under Section 357(1)(b) of the Code. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Considering the scope of enquiry and the nature of contentions raised by the revision petitioner, this Court felt that the revision can be disposed of at the admission stage itself after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the 2[nd] respondent and dispensing with notice to the first respondent. 4 Crl.R.P.No.2059 of 2014 5. The counsel for the revision petitioner submitted that the evidence of Pws 1 and 2 is not sufficient to prove the execution of the cheque as claimed by the complainant. Further the evidence will go to show the case of the revision petitioner is more probable than the case of the complainant and that has not been properly appreciated by the courts below. So the learned counsel prayed for acquittal of the revision petitioner. 6. The learned Public Prosecutor supported the concurrent findings of the court below. 7. The complainant is a company conducting chitty business and the revision petitioner was a subscriber to the three chitties conducted by the complainant and he bid the chitties and committed default in payment of the amount. The case of the complainant was that for the amount of Rs.2,39,000/- due from the revision petitioner to the complainant he had issued Ext.P1 cheque. But the case of the revision petitioner was that the cheque was given as security to the chitty transaction and it was misused and the present complaint was filed. 8. In order to prove the case of the complainant, PW1, the power of attorney holder and another officer of the Crl.R.P.No.2059 of 2014 5 company was examined as PW2 and both Pws 1 and 2 have deposed that the revision petitioner had committed default and he came to the office and delivered Ext.P1 cheque after signing the same in their presence in discharge of the amount due from him to the complainant concern. They denied the suggestion that blank signed cheque given as security was misused. So it is clear from this that the revision petitioner had no case that he had not issued the cheque. He had admitted his signature in Ext.P1 and he had also admitted delivery of the cheque to the complainant as well. Further he had no case that he had discharged the entire liability and there is no amount due from him to the complainant as well. Ext.P7 account extract produced will go to show that the amount shown in the cheque was due from the revision petitioner at the time when the cheque was issued. Further he did not adduce any evidence to prove that the blank signed cheque given was misused. He had no case that there is no authority given to the complainant to fill the cheque, if he did not pay the amount. 9. It is settled law that once it is admitted by the revision petitioner that a blank signed cheque was given as Crl.R.P.No.2059 of 2014 6 security for the transaction, then there is implied authority to the holder of the cheque to fill up the cheque for the amount due, if the amount was not paid, for which the cheque was given as security. So under the circumstances, in the absence of any evidence adduced on the side the revision petitioner that he had discharged the amount and no amount as mentioned in the cheque was due, the courts below were perfectly justified in relying on the evidence of Pws 1 and 2 and the documents produced and also statutory presumption available under Sections 139 and 118 of the Act rightly came to the conclusion that the complainant proved the case and had issued Ext.P1 cheque in discharge of legally enforceable debt for the amount due to the complainant and since the revision petitioner had not paid the amount in spite of notice issued, he had committed the offence punishable under Section 138 of the Act. 10. Notice was returned unclaimed. The revision petitioner had no case that he will not receive notice in that address. Once it is proved by the complainant that they have issued notice in the correct address in which it will be normally served on him and if it is sent by registered post and if it is Crl.R.P.No.2059 of 2014 7 returned with the endorsement unclaimed, then it will be deemed to have been served on him and that will be sufficient service on him. This was so held in the decision reported in **Alavi Haji C.C. v. Palapetty Muhammed & others** (ILR 2007 (3) Ker.203). So the courts below were perfectly justified in coming into the conclusion that there was proper service of notice and the conclusion entered by the courts below against the revision petitioner under Section 138 is perfectly justified and no interference is called for on that finding. 11. As regards the sentence is concerned, the trial court has sentenced the revision petitioner to undergo simple imprisonment for six months and also to pay compensation of Rs.2, 39,000/- to the complainant, in default to undergo simple imprisonment for three months under Section 357 (3) of the Code. But the appellate court had modified the sentence sentencing the revision petitioner to undergo imprisonment till the rising of court and also to pay fine of Rs.2,39,000/-, in default to undergo simple imprisonment for four months with further direction to pay the fine amount, if realized, to the complainant as compensation under Section 357(1)(b) of the Code, relying on the decision reported in **Somnath Sarkar v.** Crl.R.P.No.2059 of 2014 8 **Utpal Basu Mallick** (2013 (4) KLT 350(SC). The appellate court had shown maximum leniency and the sentence imposed can be said to be excessive which warrants interference at the hands of this Court. 12. When this revision petition was about to be disposed of, the counsel for the revision petitioner prayed six months time to pay the amount. Considering the amount involved, though the case is of the year 2007, this Court feels that the time asked for appears to be reasonable. So the revision petitioner is granted time till 10.6.2015 to pay the amount. Till then, execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of the same and either the complainant or their representative appears before the court and acknowledges payment of the same, then the court below is directed to treat the same as substantial compliance of payment of compensation out of fine as directed by the appellate court confirmed by this Court, the court below is directed to record that fact in the respective fine register as provided in **Beena v. Balakrishnan Nair & another** (2010 (2) KHC 851) and **Sivankutty v. John Thomas** Crl.R.P.No.2059 of 2014 9 **& another** (2012 (4) KLT 21) and permit the revision petitioner to serve substantive sentence of imprisonment till the rising of court. With the above directions and observations, this revision petition is disposed of. Office is directed to communicate this order to the concerned court at the earliest. Sd/- ## **K.RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.2059 of 2014 10