Reji Janardhanan v. Gopakumar G. and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** **Crl.Rev.Pet.No. 1175 of 2017 () --------------------------------** **CRL.A 36/2014 OF ADDITIONAL SESSIONS COURT-I, MAVELIKKARA. CC 16/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, MAVELIKKARA.** **....** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **REJI JANARDHANAN, AGED 40 YEARS, S/O.JANARDHANAN NAIR, KRISHNA BHAVANAM, CHERUKOLE P.O, MAVELIKKARA TALUK, ALAPPUZHA.** **BY ADVS.SRI.S.SHANAVAS KHAN SMT.S.INDU** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------** **1. GOPAKUMAR G., AGED 46 YEARS, N.G GOKULAM, KOTTARKAVU, MAVELIKKARA, ALAPPUZHA DISTRICT - 688 001.** **2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **ALEXANDER THOMAS, J. -------------------------------Crl.R.P. No.1175 of 2017 ----------------------------------** Dated this the 9[th] day of October, 2017 ## **O R D E R** The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act, in C.C.No.16 of 2013 on the file of the Judicial First Class Magistrate Court-III, Mavelikkara instituted on the basis of a complaint filed by the 1[st] respondent herein. 2. Ext.P1 is the dishonour cheque dated 10.10.2011 is for Rs.75,000/-. The trial court as per the impugned judgment rendered on 31.12.2013 has convicted the petitioner for the aforesaid offence and has sentenced to undergo simple imprisonment for three months and to pay fine of Rs.89,000/and in default thereof to suffer simple imprisonment for a further period of one month. If the fine amount is realized was directed to be paid as compensation to the complainant under Section 357(1) (b) of Cr.P.C. 3. Aggrieved thereby the petitioner had preferred Crl.Appeal No.36 of 2014 before the appellate Sessions Court ## **Crl.R.P. No.1175 of 2017** ## **-: 2 :-** concerned (Additional Sessions Judge-1, Mavelikkara). The appellate Court as per the impugned judgment rendered on 18.07.2017 has dismissed the Crl. Appeal and has confirmed the impugned conviction and sentence. It is challenging these concurrent verdicts of both the courts below, the petitioner has preferred the instant revision petition by invoking the remedies conferred under Sections 397 and 401 of Cr.P.C. 4. Heard Sri.S.Shanavas Khan and Smt.S.Indu, learned counsel appearing for the revision petitioner/accused and Shri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for the first respondent State. 5. In the nature of the orders supposed to be passed in the revision petition, notice to R1/complainant would stand dispensed with. 6. The gist of the prosecution case of the complainant is that by virtue of the close acquaintance of the parties, the accused on 9.8.2011 had borrowed an amount of Rs.75,000/- from the complainant and in discharge of the said liability, the accused had executed Ext.P1 cheque dated 10.10.2011 for Rs.75,000/- drawn in **-: 3 :-** ## **Crl.R.P. No.1175 of 2017** favour of the complainant and the cheque was handed over by the accused to the complainant on 10.10.2011 and that when the cheque was presented, the cheque was dishonoured as per Ext.P3 bank memo on the ground of insufficiency of funds. Thereupon, the complainant was constrained to issue Ext.P4 statutory demand notice under Section 138 of the Negotiable Instruments Act calling upon the accused to pay out the amount covered by the said cheque within the requisite time. The notice sent under registered post was duly served on the accused as per Exts.P5 & P6. The accused has not responded by issuing any reply. The amount was not paid, the complainant after clearing all the requisite statutory formalities and instituted the above complaint. During the trial, the complainant was examined himself as PW1 and has marked Exts.P1 to P6 documents. Defence has not adduced any oral or documentary evidence. 7. PW1 has broadly deposed in tune with the contents of his complaint regarding the transactions which lead to the borrowal and dishonour of the cheque and issuance of the statutory demand notice etc. The basic defence set up by the ## **Crl.R.P. No.1175 of 2017** ## **-: 4 :-** accused was that the accused has not voluntarily issued Ext.P1 cheque in the manner alleged in the complaint and further that the complainant was the building contractor and that the service of the accused as a interior decorator/designer was engaged by the complainant in a building contract work and in that regard an amount of Rs.30,000/- was given as advance by the complainant to the accused and Ext.P1 was taken as a blank signed cheque from the accused by the complainant as a security in the said transaction and that eventhough the petitioner had successfully completed the work and closed the transaction, the blank signed cheque was not returned by the complainant, which has been misused in the present complaint etc. 8. The complainant has stoutly denied the said defence version. Both the courts below have found that no special circumstances have been brought out either in the crossexamination of PW1 or in the basis of other materials to establish the sustainability of such a defence suggestion. Accordingly the courts below held that the said suggestion made by the defence is not a probable and credible one. The courts below found that the ## **Crl.R.P. No.1175 of 2017** ## **-: 5 :-** evidence of PW1 is broadly credible and believable and that the accused is liable to be convicted for the offence under Section 138 of the Negotiable Instruments Act. The said considered concurrent findings of facts regarding the conviction of the petitioner cannot be said to be perverse and illegal. Therefore, this revisional Court is not in a position to interfere with the conviction imposed in the instant case. 9. As regards the sentence, this court is definitely of the view that the substantive sentence of three months Simple Imprisonment imposed in this case for a cheque amount Rs.75,000/- is certainly disproportionate and excessive. Going by the legal principles laid down by the Apex Court as in **Damodar S.Prabhu v. Sayed Babalal reported** in **AIR 2010 SC 1907 and Kaushalya Devi Massand v. Roopkishore** in **AIR 2011 SC 2566** etc., it is now well established that the offence of dishonour of cheques covered under Section 138 of the Negotiable Instruments Act is essentially a civil wrong, which has been criminal overtones by legislative intervention by the amendment of the Negotiable Instruments Act and that an appropriate sentence ## **Crl.R.P. No.1175 of 2017** ## **-: 6 :-** of fine which is disbursable as compensation to the complainant would be sufficient ordinarily to meet the ends of justice etc. 10. Therefore, this court is of the view that the substantive sentence in this case is liable to be set aside. Having regard to the fact that the cheque amount is only Rs.75,000/-, the fine amount imposed by the court below can be reduced from Rs.89,000/- to Rs.80,000/-. 11. Smt.S.Indu, learned counsel appearing for the petitioner accused would also submit that in case this Court is to confirm the conviction, this Court may grant six months time to the petitioner to pay the fine amount. It is pointed out that due to various problems in the economy, the petitioner is not getting sufficient work in respect of his avocation and that it will be very difficult for the petitioner to raise the amount in a short time and that time, etc. Having regard to the facts and circumstances of the case this is Court is inclined to grant time upto five months to pay the fine amount. 12. Accordingly the following directions and orders are passed: ## **Crl.R.P. No.1175 of 2017** ## **-: 7 :-** - _i. The impugned conviction, imposed on the petitioner for the offence punishable under Section 138 of NI Act in this case will stand confirmed._ - _ii.The impugned substantive sentence of three months simple imprisonment imposed in this case stands set aside._ - _iii.In supersession of the orders passed by the courts below, it is ordered that the petitioner is sentenced to pay fine of Rs.80,000/- (Rupees Eighty thousand only). The said amount in full shall be disbursed as compensation to the complainant in terms of Section 357(1)(b) of Cr.P.C. On default on the part of the petitioner to pay the said amount, he will have to suffer simple imprisonment for a period of one month._ - _iv.The petitioner is given five months time to pay the above said fine amount._ - _v.The petitioner shall personally appear before the trial court at 11.A.M. on any day on or before 17.03.2018 to remit the above said fine amount of Rs.80,000/- to the trial court. On default of the petitioner to pay the amount, he will have to suffer the sentence of simple imprisonment for one month as directed herein above._ - _vi. Until 17.03.2018 all coercive steps taken against the petitioner in pursuance of execution of the_ ## **Crl.R.P. No.1175 of 2017** ## **-: 8 :-** _impugned sentence of this case will stand deferred. vii. The Registry will forward copies of this judgment to the trial court as well to the first respondent (complainant)._ With these observations and directions, the Crl.R.P. stands finally disposed of. STK sd/- **ALEXANDER THOMAS, JUDGE** //TRUE COPY// //P.A. TO JUDGE//