Ravi S/o Kumaran v. Sudha and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 Crl.Rev.Pet.No. 2437 of 2010() ----------------------------------(CRA.53/2008 of II ADDL.SESSIONS COURT, KOLLAM STC.19/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KARUNAGAPPALLY) .................... REVN. PETITIONER(S): ------------------------- RAVI, S/O.KUMARAN, THATTARTHU VEEDU, THODIYOOR NORTH, THODIYOOR VILLAGE. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENTS(S): -------------------- 1. SUDHA, W/O.RAVI, RANJITH BHAVAN, THODIYOOR NORTH, THODIYOOR VILLAGE, 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON 30/08/2010 PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------Crl.R.P.No. 2437 of 2010 --------------------------------------------Dated this the 30[th] day of August, 2010** ## **O R D E R** The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the revision petitioner/accused is that the accused borrowed an amount of Rs.2,00,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 25.10.2002 for a sum of Rs.2,00,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Karunagappally by filing a complaint whereupon S.T.C.No.19 of ## **Crl.R.PNO.2437 of 2010** ## **:-2-:** 2006 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced her evidence consisting of the documentary evidence such as Exts.P1 to P5 and the oral evidence of herself and another as Pws.1 and 2. From the side of the accused, DW1 was examined, but no document was produced. Besides the above, Ext.X1 is marked as court exhibit. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus, accordingly, the court held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for one year and also directed to pay a compensation of Rs.2,00,000/- to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as three months simple imprisonment. ## **Crl.R.PNO.2437 of 2010** ## **:-3-:** 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, by judgment dated 14.6.2010 in Crl.A.No.53 of 2008, the court of the IInd Additional Sessions Judge, Kollam dismissed the appeal, but subject to certain modification with respect to the sentence. Thus, while confirming the conviction, the lower appellate court reduced the sentence of imprisonment till the rising of the court and the revision petitioner is also sentenced to pay fine of Rs.2,00,000/- and in default, the revision petitioner is directed to undergo simple imprisonment for 14 days. It was also ordered that on realisation of the fine, it shall be paid to the complainant as compensation. It is the above conviction, sentence and direction to pay the fine, challenged in this Crl.R.P. 4. I have heard, elaborately, Mr.M.K.Chandramohan Das, learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner vehemently argued that the trial court as well as the lower appellate court miserably failed to examine as to whether the complainant has established the essential ingredients of Section 138 of the ## **Crl.R.PNO.2437 of 2010** ## **:-4-:** N.I.Act. Learned counsel submitted that absolutely, there is no pleadings and evidence regarding the alleged transaction and therefore, the courts below committed wrong in fixing the liability under Section 138 of the N.I.Act upon the revision petitioner. In support of the above contention, learned counsel very much placed reliance upon the decision in **Bhaskaran Nair** v. **Mohanan** [2009(2) KLT 897]. It is also the contention of the learned counsel that the case of the complainant cannot be believed, especially when the alleged loan is for Rs.2 lakhs since a loan transaction above Rs.20,000/- otherwise than by cheque is interdicted under Section 269 SS of the Income Tax Act and any infraction of the said provision attracts penal liability. It is also the case of the learned counsel that the denial of the request of the accused to send the cheque in question for an expert opinion resulted in miscarriage of justice and hence, the finding of the court below, without affording effective and ample opportunity to substantiate the defence, is liable to be set aside. It is also the specific case of the learned counsel that when the execution of the cheque in question is denied, the burden is on the complainant to prove that it was executed by the revision ## **Crl.R.PNO.2437 of 2010** ## **:-5-:** petitioner, but the court below miserably failed to take note of the above defence. It is also the contention of the learned counsel that without serving proper and valid notice upon the accused, the offence under Section 138 of the N.I.Act will not be attracted, but the court below overlooked the above legal requirement. In support of the above contention, the learned counsel heavily relied upon the evidence of DW1 and Ext.X1. Thus, according to the learned counsel, the findings of the trial court as well as the lower appellate court are incorrect and illegal and therefore, those judgments are also liable to be set aside. In order to substantiate the contention, the learned counsel has also placed reliance upon the decision of this Court reported in **Issac Thomas** v. **State of Kerala** [2010(3) KLT 56]. 6. The case of the complainant is that the revision petitioner/accused is one of the close relatives of the complainant and out of the said relationship, the complainant, on demand of the accused, gave a sum of Rs.2 lakhs. She had also financial capacity to give such amount since her husband is working in Gulf countries for the last several years and her father is also running a match factory. Thus, the amount was ## **Crl.R.PNO.2437 of 2010** ## **:-6-:** obtained by the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque which contained his signature. The accused denied the execution and issuance of the cheque. But, the courts below found that no reasonable and convincing explanation is forthcoming from the accused as to how Ext.P1 cheque reached in the hands of the complainant. The complainant has adduced evidence regarding the transaction which she claimed and she produced the cheque which contained the signature of the accused and it is for the accused to give a clear account as to how Ext.P1 cheque reached in the possession of the complainant. In this juncture, it is relevant to note that though statutory notice was served, no reply is given for the same. Of course, the accused took a contention that no notice was served on him and in order to substantiate the above plea, he had relied upon the evidence of DW1 and Ext.X1. 7. Regarding the production of the cheque from the possession of the complainant, the only explanation is that “വ�ദ�യ�ട� ഭര��വ� എട� **cheque** മ��ഷ�ച� ട��ണ� മ��യത�യ�ര�ക��.” The above explanation itself is not specific. It is only a guess. ## **Crl.R.PNO.2437 of 2010** ## **:-7-:** No details are given as to the place, time, date etc. with respect to the theft of Ext.P1 cheque and what are the steps taken in pursuance of such theft of cheque etc. Such an evasive statement cannot be treated as a substitute for reasonable explanation, so as to consider whether the accused has discharged his burden. 8. In this juncture, the failure on the part of the revision petitioner to send reply to Ext.P4 lawyer notice becomes relevant. In order to circumvent the above legal hurdle, the defence taken by the accused is to the effect that no notice was served on him. Ext.P5 is the unclaimed registered cover with the acknowledgement card. The accused has no case that he has not resided in the address shown in Ext.P5. The accused has also not taken any steps to prove that notice was not served on him. The trial court in its judgment especially in paragraph 6 discussed the matter in detail. The trial court has specifically found that the contention of the accused is false because in the vakalath and the petition filed by the accused before the court, his address is shown as the same which is shown in Ext.P5. The trial court also disbelieved the evidence of DW1 by assigning ## **Crl.R.PNO.2437 of 2010** ## **:-8-:** very satisfactory and cogent reasons. So the contention raised by the learned counsel for the revision petitioner that no notice was served on the revision petitioner cannot be entertained even for a moment. 9. In the light of the above facts and discussion, particularly when the complainant had adduced evidence and produced Ext.P1 cheque from her possession, which contained the signature of the accused, that too against the accused who is none other than one of her relatives, regarding the transaction, I find the courts below are perfectly legal and correct in drawing presumption in favour of the complainant under Section 139 of the N.I.Act. Mere denial of the execution of the cheque or an evasive statement that the cheque might have stolen, against the production of cheque from the possession of the complainant is not sufficient to discharge the burden of the accused to rebut the presumption. 10. The denial of the request of the revision petitioner for sending Ext.P1 cheque for expert opinion will no way adversely affect the interest of the accused because the said request was made at a belated stage. As I indicated earlier, there was no ## **Crl.R.PNO.2437 of 2010** ## **:-9-:** plausible and convincing explanation regarding the reaching of Ext.P1 cheque in the hands of the complainant. Under such a factual situation, the decision relied on by the learned counsel for the revision petitioner in **Issac Thomas** case(supra) has no relevance at all. There, the learned single Judge of this Court has held that there is no justification for disallowing the petition to send the cheque for expert opinion, especially when there is no conclusion that the said petition was filed for mala fide intention to protract the case. There, the facts involved are entirely different from the present case. In that case, the specific case of the defence was that the cheque in question was lost from the possession of the accused during his journey and that there was no consideration and the second respondent/complainant therein is not known to the accused and the factum of loss of the cheque during the journey was reported to the bank of the accused therein. In the present case, absolutely there is no evidence as to how the cheque in question reached in the hands of the complainant, who is none other than one of the close relatives of the accused, nor there is any evidence regarding the steps taken by the accused consequent to ## **Crl.R.PNO.2437 of 2010** ## **:-10-:** the loss of the cheque from his possession. Therefore, the decision relied on by the counsel has no relevance in the present case and the dictum laid down therein has no application in the present case. 11. In the light of the concurrent findings arrived on by the trial court as well as the lower appellate court and especially when revision petitioner has miserably failed to make out a case that the courts below overlooked or omitted to consider any material or evidence, which is otherwise in favour of the accused, I find no reason to interfere with the order of conviction recorded by the courts below. 12. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine and to receive the sentence. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to other relevant facts and circumstances involved in the case. 13. The cheque in question is dated 25.11.2002 and that ## **Crl.R.PNO.2437 of 2010** ## **:-11-:** too for an amount of Rs.2 lakhs. Thus, as per the finding of the court below, the amount due to he complainant is with the revision petitioner for the last eight years. However, though the appellate court, by judgment dated 14.6.2010, modified the sentence of imprisonment to one day simple imprisonment, i.e., till the rising of the court, so far no appeal or revision is seen filed by the complainant against the reduced substantial sentence. The Apex Court, in the decision reported in **Damodar.S.Prabhu** v. **Sayed Babalal.H.** [JT 2010(4) SC 457], has held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Therefore, while granting some time to the revision petitioner to pay the fine, I am of the view that the fine amount can be enhanced slightly considering the fact that the amount was due at least from 25.11.2002 onwards. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while maintaining the sentence of imprisonment as modified and fixed by the lower appellate court, the revision ## **Crl.R.PNO.2437 of 2010** ## **:-12-:** petitioner is sentenced to pay a fine of **Rs.2,25,000/-** (Rupees Two Lakhs Twenty Five Thousand only) within two months from today and in case of any default in paying the fine, the revision petitioner is directed to undergo simple imprisonment for three months and on realisation of the fine, a sum of **Rs.2,22,500/-** shall be paid to the complainant under Section 357(1)(b) of the Cr.P.C. and the remaining amount shall be paid to the State Exchequer. Accordingly, the revision petitioner/accused is directed to appear before the trial court on **30.10.2010** to receive the sentence and to deposit the fine. In case of any failure on the part of the revision petitioner in appearing before the trial court and to deposit the fine amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the petitioner shall be deferred till **30.10.2010** . **V.K.Mohanan, Judge.** MBS/ ## **Crl.R.PNO.2437 of 2010** **:-13-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ ## **Crl.R.PNO.2437 of 2010** ## **:-14-:** J U D G M E N T DATED: -2-2010 ## **Crl.R.PNO.2437 of 2010** **:-15-:**