Ramachandra Kurup v. The State of Kerala and Dinesh B.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** ## **Crl.Rev.Pet.No. 1827 of 2013 ()** **-------------------------------AGAINST THE JUDGMENT IN CRL.A. NO. 36/2012 OF SESSIONS COURT, PATHANAMTHITTA DATED 27-04-2013. AGAINST THE JUDGMENT IN CC. NO.295/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PATHANAMTHITTA DATED 17-02-2012.** **.......** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **---------------------------------------------------------------------** **RAMACHANDRA KURUP, DWARAKA, (CHANKARAMANGALAM), NEAR OLIKKAL VEEDU, PATTAZHI P.O., PIN-691 522.** ## **BY ADV. SRI.C.RAJENDRAN.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT :** **------------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. DINESH B., LEKSHMI NIVAS, PETTIPURAM, MUNDUKOTTAKKAL P.O., PATHANAMTHITTA-689 645.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY. R2 BY ADV. SRI.MVS.NAMBOOTHIRY.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## ALEXANDER THOMAS, J. ================== Crl.R.P.No. 1827 of 2013 ================== Dated this the 19[th] day of June, 2017 O R D E R The petitioner is the accused in C.C.No.295/2007 on the file of the Judicial First Class Magistrate's Court-I, Pathanamthitta, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 2[nd] respondent (complainant). The trial court as per the impugned judgment dated 17.2.2012 had convicted the petitioner and had sentenced him to undergo simple imprisonment for 1½ years and to pay compensation of Rs.3,05,000/to the complainant under Sec.357(3) of the Cr.P.C and in default thereof, the petitioner was sentenced to undergo simple imprisonment for a further period of two months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.36/2012 before the appellate Sessions Court concerned (Court of Sessions Judge, Pathanamthitta). The appellate court as per the impugned appellate judgment dated 27.4.2013 had upheld the conviction and had also confirmed the sentence, but modified the substantive sentence to imprisonment till rising of the court and reduced the compensation amount to Rs.3,00,000/-, in default of payment of which, the petitioner was sentenced to suffer simple Crl.R.P.1827/13 - : 2 :- imprisonment for 3 months. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. Heard Sri.C.Rajendran, learned counsel appearing for the petitioner, Sri.M.V.S.Namboothiry, learned counsel appearing for R-2 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 3. The gist of the allegations in the complaint is that to discharge liability of Rs.3 lakhs owed by the accused to the complainant, the revision petitioner accused had issued Ext.P-1 cheque dated 20.10.2006, which when presented was dishonoured as per Ext.P-2 memo, pursuant to which, the complainant had issued Ext.P-4 statutory demand notice dated 6.11.2006 calling upon the accused to pay off the amount covered by the cheque. The said notice was duly served on the accused as per Ext.P-6 dated 9.11.2006 and the petitioner had sent reply to the notice denying the transaction. The complainant after satisfying the requisite formalities, had instituted the instant complaint, which had led to the instant trail in question. 4. During the trial, the complainant has examined himself as P.W-1 and has marked Exts.P-1 to P-10 documents. The accused had examined himself as DW-1 and also examined DW-2 & DW-3 and has Crl.R.P.1827/13 - : 3 :- also marked Exts.D-1 and D-2 documents. 5. The complainant as P.W-1 has deposed broadly in tune with the contents of his complaint and stated about the liability owed by the accused to the complainant, which led to the dishonoured cheque, etc. 6. The main defence set up by the accused was that he had difference of opinion, with his wife, which led to matrimonial dispute, and that she had deserted him on 16.5.2005 and that she had taken away valuable items and that the instant cheque taken away by her has been handed over to the complainant, who is her relative and that he has presented the said cheque even though there was no transaction whatsoever between the accused and the complainant and that the complainant has misused that cheque. DW-3 (wife of the accused) in her evidence has denied that she had taken away any valuable items or cheques of the petitioner. The trial court found that Ext.P-10 is the deposition of the present accused in a connected matter in C.C.No. 914/2006 on the file of the Judicial First Class Magistrate's Court, Punalur, in which he had clearly deposed that as on 26.3.2006, his wife and younger son were residing in his house. On this basis, the trial court held that the said admission made by the accused in the said previous statement as per Ext.P-10 would cut at the very root of his present version that the wife of the accused had earlier deserted him on 16.6.2005 inasmuch he has clearly admitted that even as on 26.6.2006 Crl.R.P.1827/13 - : 4 :- his wife and child were residing with him. In the light of these aspects, the trial court found that the defence set up the accused is not believable and credible, whereas the trial court found that the overall version projected by the complainant is broadly probable and credible. The learned counsel for the revision petitioner accused would place reliance on the deposition of DW-3 (wife of the accused) that she has stated that since 16.6.2005 she has been residing with her children. However, the fact remains that DW-3 has strongly denied the accusation made by the accused that she has taken away valuables including the cheques of the accused. The petitioner has not taken action in the matter regarding the alleged loss of cheque and valuables. Though the accused had denied the signature in the dishonoured cheque, he has not taken any steps to establish the veracity of such an allegation. The accused has no credible explanation regarding his earlier admission made in Ext.P-10. 7. However, Sri.C.Rajendran, learned counsel appearing for the petitioner has mainly raised a new contention, which has never been addressed before the courts below. It is argued that the very case of the complainant is that the cheque in question has been dishonoured on the ground of “account closed”. It is contended that a learned Single Judge of this Court as per the judgment dated 5.7.2016 in the case Muralidharan.V. v. V.A.Kumaran, reported in 2016(3) KHC 845 has clearly held that offence under Sec.138 of the Negotiable Instruments Act will not be attracted in a case where account has been closed prior to drawal of the cheque and in Crl.R.P.1827/13 - : 5 :- such case, only offence under Sec. 420 of the I.P.C. will be attracted. On this basis, Sri.C.Rajendran, learned counsel appearing for the revision petitioner accused would contend that in the case involving dishonoured cheque on the ground of “account closed”, then certainly the burden of proof casts on the complainant to establish before the trial court as to whether the account has been closed prior to drawal of the dishonoured cheque or after the drawal of the dishonoured cheque and only in a case, where it is established that the account closure is after the drawal of the impugned cheque, will the offence under Sec.138 of the N.I. Act would lie, otherwise if the closure of the account is before the drawal of the cheque, the complaint under Sec.138 of the N.I. Act is not maintainable. That since this Court in V.Muralidharan's case supra has already held that if the account closure is prior to the drawal of the cheque, then only an offence under Sec. 420 of the I.P.C. is made out and if the onus of proving the fact that whether the account has been closed before the drawal of the cheque is placed on the accused, then it would amount to compelling him to adduce evidence, which may have the result of implicating him for the offence under Sec.420 of the I.P.C. Such a scenario would amount to direct and inevitable violation of the precious constitutional right guaranteed to an accused against self incrimination as engrafted in clause (2) of Art.20 of the Constitution of India. On this basis, it is contended by the petitioner that since the Crl.R.P.1827/13 - : 6 :- complainant has not adduced any evidence to show as to whether the account has been closed prior to or after the drawal of the cheque, the accused is clearly entitled for acquittal. But it is seen that the above judgment dated 5.7.2016 of the learned Single Judge of this Court in V.Muralidharan's case supra has been rendered without noticing the earlier judgments of this Court rendered by the Division Bench in Vathsan v. Japahari, reported in 2003(3) KLT 972 as well as a judgment dated 26.11.2015 of learned Single Judge of this Court in Bhaskaran T. & Anr. v. M.P.Mohandas & Anr. reported in 2016 (1) KHC 254 = 2016 (1) KLD 156. It can be seen from a mere perusal of the aforecited Division Bench judgment reported in 2003 (3) KLT 972 as well as the judgment of the learned Single Judge in Bhaskaran.T. & Anr. v. M.P.Mohandas & Anr. reported in 2016(1) KHC 254, that it has been conclusively held therein that even if the account has been closed prior to the drawal of the cheque, the offence under Sec.138 of the Negotiable Instruments Act will get attracted. Therefore, considering these aspects, this Court in the judgment dated 25.5.2017 in Crl.R.P.No.600/2017 has held that the abovesaid view of the learned Single Judge in Muralidharan.V. v. V.A.Kumaran, reported in 2016(3) KHC 845, to the limited extent that no offence under Sec.138 of the Negotiable Instruments Act will be attracted in a case where the account closure is prior to the drawal of the cheque does not reflect the correct legal position insofar as the said decision of Crl.R.P.1827/13 - : 7 :- this Court has not reckoned the earlier view of the Division Bench in Vathsan's case reported in 2003 (3) KLT 972, as well as the decision in Bhaskaran's case supra. In the light of these aspects, this Court is constrained to overrule the abovesaid argument of Sri.C.Rajendran, learned counsel appearing for the petitioner. 8. For all these reasons, this Court is of the view that the findings arrived by both the courts below cannot be said to be perverse or unreasonable. Accordingly, this Court is the view that the impugned conviction cannot be subjected to any revisionary interference. As far as sentence is concerned, the trial court has sentenced the petitioner to undergo simple imprisonment for 1½ years with a compensation of Rs.3.05 lakhs, whereas the appellate court has reduced the said substantive sentence to imprisonment till rising of the court and has reduced the compensation amount from Rs.3.05 lakhs to Rs.3 lakhs, which is the amount covered by the cheque. Therefore the impugned modified sentence imposed by the appellate court cannot be said to be disproportionate or excessive. For these reasons, no interference is called for in the impugned sentence as well. 9. Faced with this situation, Sri.C.Rajendran, learned counsel appearing for the petitioner would submit that in case this Court is so inclined to affirm the conviction and sentence, this Court may grant at least 10 months' time to pay the compensation amount of Rs.3 lakhs Crl.R.P.1827/13 - : 8 :- directly to the complainant. It is pointed out that the petitioner is in deep financial trouble and it will not be possible for him to raise such a huge amount within a short period. In the light of these aspects, the following orders and directions are issued: - i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act will stand confirmed. - ii) The impugned substantive sentence of imprisonment till rising of the court is also confirmed. - iii) The petitioner is given 10 months' time from 1.7.2017 to pay the said compensation amount of Rs. 3 lakhs. The revision petitioner will be at liberty to pay the amount directly the complainant. On payment of the amount, the complainant will issue receipts to the accused so that the accused can produce the same before the trial court to satisfy the trial court about payment of the amount. - iv) The petitioner shall appear before the trial court at 11 a.m. on 5.5.2018 to receive the sentence of imprisonment till rising of the court and to satisfy the trial court about the payment of the compensation amount. - v) On default of the payment of the compensation amount, the petitioner will have to suffer simple imprisonment for a further period of 3 months. - vi) Until 5.5.2018 all further coercive steps taken against the petitioner in pursuance of the execution of the impugned warrant will stand deferred. - vii) On default of the petitioner either to appear before the trial court on 5.5.2018 or in paying the abovesaid amount, the trial court will be at liberty to proceed against the petitioner, in accordance with law. With these observations and directions, the Criminal Revision Petition stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.R.P.1827/13 - : 9 :-