Ramadas M.P. v. State of Kerala and Rasheed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936** **Crl.Rev.Pet.No. 1923 of 2014 ()** **------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN Crl. Appeal 166/2012 of ADDL.SESSIONS COURT, PALAKKAD, DATED 20-09-2014 & AGAINST THE ORDER/JUDGMENT IN ST 13/2008 of J.M.F.C. - II, OTTAPPALAM, DATED 02-04-2012** ## **REVISION PETITIONER(S)/PETITIONER/1ST ACCUSED:** **----------------------------------------------------------------------------** **RAMADAS M.P., AGED 42 YEARS, S/O.THAMBI, MANGALAM PARAMBIL, PARUTHUR P.O., PALLIPURAM, PATTAMBI, PALAKKAD DISTRICT.** **BY ADVS.SRI.KRISHNADAS P. NAIR** **SRI.HARIDAS P.NAIR SMT.K.L.SREEKALA SRI.M.A.VINOD SRI.M.RAJESH KUMAR SMT.GIA MATHAI KANDATHIL** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **--------------------------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **2. RASHEED, AGED 27 YEARS,** **S/O.VAPPUTTY, MULLAKKATTUTHODI HOUSE, VARODE AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT - 679 303** ## **BY PUBLIC PROSECUTOR SR. MOHAMMED SAVAD** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ss** ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1923 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 7[th] day of November, 2014 ## O R D E R Accused in S.T.No.13/2008 on the file of Judicial First Class Magistrate Court-II, Ottapalam, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant/2[nd] respondent herein, against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 2,00,000/-₹ from the complainant and in discharge of the liability, he had issued Ext.P1 cheque and the cheque when presented was dishonoured for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonour memo and that was intimated to the complainant vide Ext.P3 and P4 memos issued form the collecting bank. Complainant issued Crl. R. P. No.1923 of 2014 2 Ext.P5(a) notice, dated 09.11.2005 on the same day evidenced by Ext.P5(b) postal receipt and the same was received by the revision petitioner on 12.11.2005 evidenced by Ext.P5(c) postal acknowledgment and he sent Ext.P6 reply, containing false allegations against the complainant and he 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, the 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 complainant himself was examined as PW1 and Exts.P1 to P5 series and P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated 3 Crl. R. P. No.1923 of 2014 that, he had borrowed an amount of 20,000/- from one₹ Vasudevan and issued two blank signed cheques as security for the transaction and thereafter he threatened and filed false complaints through some other persons and he had filed Ext.D1 complaint before the Dy.S.P., Shornur, and the matter was settled in his presence and mis-using the cheque the present complaint was filed. He did not adduce any oral evidence at that time. but marked only Exts.D1 and D2 on his side in defence. After considering the evidence on record, the trial court earlier found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and thereafter he filed Crl.Appeal No.3/2010 and the appellate court had set aside the order of conviction and sentence and remanded the case to the court below for giving an opportunity to the revision petitioner to adduce defence evidence to prove Exts.D1 and D2 in accordance with law. Accordingly, after remand, DW1 was examined and Exts.D3 and D4 were also marked through him. After 4 Crl. R. P. No.1923 of 2014 considering the evidence on record, the trial court found that the case set up by the revision petitioner is not believable and Exts.D1 to D4 do not relate to this cheque and believing the evidence of PW1, convicted him for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for three months and also to pay the cheque amount of 2,00,000/-, as compensation to₹ the complainant, in default to undergo simple imprisonment for 15 days more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.166/2012 before the Sessions Court, Palakkad, which was made over to the Additional Sessions Court, Palakkad, for disposal and the learned Additional Sessions Judge by impugned judgment allowed the appeal in part, confirming the order of conviction and direction to pay compensation, but reduced the substantive sentence of imprisonment to imprisonment till rising of the court and awarded default sentence of 5 Crl. R. P. No.1923 of 2014 three months simple imprisonment for non-payment of compensation and time was granted till 08.10.2014 to pay the amount and surrender before the court to serve the sentence as well. Aggrieved by the same, the present revision has been filed by the revision petitioner. 4. Considering the scope of enquiry involved and also the nature of contentions raised, 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 first respondent, dispensing with notice to the 2[nd] respondent. 5. The counsel for the revision petitioner submitted that, the courts below have failed to appreciate the evidence that the complainant had no means to pay the amount and his name was shown as one of the probable suspect in Ext.D1 complaint and that probabilise the case of the revision petitioner that the cheque given to one Vasudevan in some money transaction with him has been Crl. R. P. No.1923 of 2014 6 mis-used and this complaint was filed through the complainant at the instance of Vasudevan and thereby he had rebutted the presumption and the courts below should not have convicted the revision petitioner for the offence alleged. 6. The learned Public Prosecutor supported the concurrent findings of the court below on facts. 7. The case of the complainant in the complaint was that, accused borrowed a sum of 2,00,000/- and issued₹ Ext.P1 cheque. The case of the accused was that, he had no transaction with the complainant and in fact he was having some money transaction with one Vasudevan and gave two blank signed cheques and the said Vasudevan threatened the revision petitioner and he filed Ext.D1 complaint that was enquired into by DW1 and the matter was settled by executing Ext.D4 agreement and mis-using the cheque the present complaint was filed. It is true that, if the execution of the cheque is denied, then the burden is on the 7 Crl. R. P. No.1923 of 2014 complainant to prove the execution of the cheque. Further in the decision reported in [ **2014(1) KLT 90 (S.C.), John K.Abrahan v. Simon C. Abraham],** the Hon'ble Supreme Court has held that, in order to attract presumption under Section 138 and 118 of the Act, the burden is heavy on the complainant to show that, he had the required funds for advancing the money to the accused, when it was pressed into service by the accused. In order to prove the case of the complainant, the complainant himself was examined as PW1 and he had deposed in support of his case. In fact, the capacity to raise the fund has not been challenged by the accused, when PW1 was cross examined. The main suggestion that has been made was that, there was no transaction between him and the complainant and the cheque given to one Vasudevan was mis-used and the present complaint was filed. He had no case that, he had not signed the cheque as well. So the complainant had proved his capacity to pay the amount and the transaction 8 Crl. R. P. No.1923 of 2014 with the revision petitioner by examining himself. Once this is proved by the complainant, the burden is on the accused to disprove that fact. He is now relying on Ext.D1 to D4 and the evidence of DW1 for that purpose. It is true that, DW1 had admitted Ext.D1 complaint in which one Rasheed's name was mentioned was filed before him and he enquired into the matter and the matter was settled. According to the revision petitioner, that Rasheed is the present complainant. But there is no case for DW1 that Rasheed was also summoned and the matter was settled in his presence. Ext.D4 was signed by the revision petitioner and the Vasudevan alone and the two cases mentioned were S.T.No.2469/2007 and S.T.No.2394/2008 and no other cheque or other matters were mentioned in Ext.D4. It was mentioned in Ext.D4 was that, two blank signed cheques given, using which, two cases were filed through two persons alone was challenged by filing Ext.D1 complaint and it was agreed that these two cases will be withdrawn. 9 Crl. R. P. No.1923 of 2014 Nothing was mentioned about Ext.P1 cheque in Ext.D1 or Ext.D4. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that Exts.D1 to D4 or the evidence of DW1 is not sufficient to come to the conclusion that Ext.P1 cheque was not issued by the revision petitioner to the complainant and the cheque given to Vasudevan was mis-used. Further the revision petitioner had no case that, the amount covered by Ext.P1 cheque was paid after receipt of the notice. On the basis of the evidence available on record, the courts below were perfectly justified in rejecting the contention of the revision petitioner and believing the evidence of PW1, rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of court below on this aspect on appreciation of the evidence do not call for any interference, as no illegality has been committed by the courts below in appreciating the evidence, for coming to such conclusion. 10 Crl. R. P. No.1923 of 2014 8. As regards the sentence is concerned, though the trial court had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay the cheque amount of 2,00,000/- as compensation,₹ in default to undergo simple imprisonment for 15 days more, the same was modified by the appellate court, by reducing the substantive sentence to imprisonment till rising of court and default sentence to four months from 15 days. It cannot be said to be an enhancement, as the substantive sentence has been converted to default sentence. So maximum leniency has been shown by the appellate court in imposing the sentence as well. So I do not find any reason to interfere the sentence imposed, as it appears to be just and proper. 9. While this court was about to dispose of the revision, the counsel for the revision petitioner prayed for six months time for payment of the amount. So considering the amount involved and also considering the fact that, the 11 Crl. R. P. No.1923 of 2014 case is of the year 2005, this court feels that time for six months sought for by the revision petitioner appears to be excessive. However considering the amount involved, this court feels that, three months time can be granted to the revision petitioner to pay the amount. So the revision petitioner is granted time till 07.02.2015, to pay the amount, till then the execution of sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and proof of payment is produced before that date and that is being acknowledged by the complainant on his appearance in that court, then the court below is directed to treat the same as substantial compliance of payment of compensation as directed by the court below and confirmed by this court and record the payment in the respective registers as provided in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another** and permit the revision petitioner to undergo 12 Crl. R. P. No.1923 of 2014 substantive sentence of imprisonment, till rising of the court and close the case as provided in the above decisions. With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. Ramakrishnan, Judge** // True Copy // P.A. to Judge ss