Renu Ninan v. Radhakrishnan Unnithan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938** **Crl.Rev.Pet.No. 1154 of 2012 () --------------------------------** **CRL.A 432/2010 OF ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK (ADHOC)), MAVELIKKARA. ST 101/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, MAVELIKKARA.** **...........** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **RENU NINAN, AGED 57 YEARS, W/O.NAINAN, VADAKKETHALAKAL HOUSE, THAZAHAKARA, MAVELIKARA.** **BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)** **RESPONDENTS/RESPONDENTS/COMPLAINANT :** **------------------------------------** **1. RADHAKRISHNAN UNNITHAN, PICCADILLY HOUSE, PERINGALA P.O., KAYAMKULAM, PIN - 690 502.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS.SMT.BHAVANA VELAYUDHAN SRI.S.SANAL KUMAR SMT.T.J.SEEMA R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION HEARD ON 27-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## ALEXANDER THOMAS, J. ================== ## Crl.R.P.No. 1154 of 2012 ================== Dated this the 27[th] day of February, 2017 O R D E R The petitioner is the accused for offence under Sec.138 of the Negotiable Instruments Act in Summary Trial Case, S.T.C.No. 101/2009, on the file of the Judicial First Class Magistrate's Court-III, Mavelikkara, instituted on the basis of the complaint filed by the 1[st] respondent herein. The trial court by the impugned judgment dated 27.7.2010 had convicted the petitioner for the abovesaid offence and had sentenced her to undergo simple imprisonment for a period of 6 months and to pay compensation of Rs.2.03 lakhs to the complainant under Sec.357(3) of the Cr.P.C. and in default thereof, the accused was sentenced to undergo simple imprisonment for a further period of 5 months. Aggrieved thereby, the petitioner had preferred Criminal Appeal No.432/2010 before the Sessions Court concerned. The appellate court (the Court of Addl. Sessions Judge, Fast Track [Ad hoc] Mavelikkara) as per the impugned judgment rendered on 26.12.2011 had dismissed the Crl.R.P.1154/12 - : 2 :- appeal, thereby confirming the impugned conviction and sentence imposed on the petitioner by the trial court. Challenging the abovesaid concurrent verdicts of both the courts below, the petitioner had preferred the instant revision petition on 21.5.2012. This Court as per order dated 30.5.2012 had admitted the Crl.R.P. and had ordered notice on R-1 (complainant) and also ordered that the warrant, if any, pending against the petitioner shall be kept in abeyance for a period of one month on condition that the petitioner deposits an amount of Rs.50,000/- before the trial court within 4 weeks. When the matter had come up for consideration on 11.1.2017, this Court had wanted to ascertain from the petitioner's counsel as to whether the petitioner had deposited the amount of Rs. 50,000/- before the trial court in compliance with the earlier interim order dated 30.5.2012. Now it is reported by Sri.A.Shafeek, learned counsel appearing for the revision petitioner that despite his diligent and consistent efforts, he has not been furnished instructions by the revision petitioner and also he had sent a registered notice calling upon her to furnish instructions. The said registered notice has been returned to the petitioner's counsel with the endorsement, “ _absent_ ”. Crl.R.P.1154/12 - : 3 :- 2. Heard Sri.A.Shafeek, learned counsel appearing for the revision petitioner accused, Smt.Bavana Velayudhan, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. The gist of the prosecution in this case is that towards discharge of liability owed by the accused to the complainant, the revision petitioner accused had issued 2 cheques, Ext.P-1 cheque dated 10.10.2007 for Rs.1.25 lakhs and Ext.P-2 cheque dated 17.10.2007 for Rs.75,000/-, and thus totalling to Rs.2 lakhs, in favour of the complainant. The complainant had presented the said cheques for encashment, which resulted in dishonour. The complainant had issued statutory demand notice as per Ext.P-5 in terms of Sec.138 proviso (b) of the Negotiable Instruments Act, by registered post, which was duly served. The petitioner had sent reply notice dated 6.5.2008 denying the transaction and stating that she had given blank signed cheques to various persons and these 2 cheques have been presented by the complainant by illegally obtaining them from such persons to whom she had granted cheques, etc. 4. During the trial, the complainant had examined himself Crl.R.P.1154/12 - : 4 :- as P.W-1 and marked Exts.P-1 to P-7 documents. The defence had marked Ext.D-1 reply notice through P.W-1. The defence had not examined any witnesses. 5. P.W.1 complainant deposed mainly in consonance with the contents of his complaint and he deposed that the accused was his family friend and she had availed a loan of Rs. 2 lakhs from the complainant on 20.9.2007 and agreed to repay the same within 15 days. That in discharge of the liability, the petitioner had issued Exts.P-1 and Ext.P-2 cheques for a total amount of Rs.2 lakhs as stated above from an account maintained by her with the State Bank of Travancore, Mavelikkara branch, in favour of the complainant. Further P.W-1 has stated that the accused had availed the said loan in her personal capacity and that the husband of the accused was a friend of the complainant and the accused as well as her husband had approached the complainant for the loan to start a computer training institution. Further P.W-1 also stated that the amount was given to the accused in her house and the accused had given the cheques in question about 15 days after availing the loan. P.W-1 also further deposed that the cheques were written and brought in and the accused signed it in his presence. P.W.1 has also admitted Crl.R.P.1154/12 - : 5 :- the cheques were also filled in different handwritings. As regards the source of money, he has stated that he is a pensioner and that the amount kept for the construction of his daughter's house was given to the accused when the husband of the accused and the accused had approached him to give this short term loan for 15 days. P.W-1 stoutly denied the defence suggestions that the cheques were given by the accused in transactions with other persons and that the cheques were unlawfully obtained by the complainant for filing the instant complaint. The main suggestion projected by the defence was that the accused had no acquaintance or transactions with the complainant and that she had given blank signed cheques to various persons and that these 2 cheques were unlawfully obtained by the complainant. Apart from raising this defence suggestion, which was also raised in Ext.D-1 reply notice, the accused had not brought in any material factual circumstances or other material evidence to at least remotely vindicate such a defence suggestion. The other contention raised by the accused was that the words and figures in Ext.P-2 cheque and the entries in Ext.P-1 cheque were written the same handwriting, but that the name of the payee and date in Ext.P-2 is seen filled in using another Crl.R.P.1154/12 - : 6 :- handwriting, etc. P.W-1 has clearly deposed before the trial court that the cheques in question were written and brought before him and the accused had signed in his presence. He has also candidly admitted that the handwriting therein appears to be different. However, the accused has not disputed that the cheques in question were issued from her account and that the signatures in the 2 cheques are hers. No suggestion was raised either in Ext.D-1 or during the cross examination of P.W-1 as to, to whom the 2 cheques in question were entrusted by the accused. As regards the source of money, the trial court found that P.W-1 is a retired Air Force officer and he had given the money kept for the construction of his daughter's house to the accused, who was his family friend. 6. On an overall evaluation of the evidence on record, the trial court as well as the appellate court came to the considered conclusion that the version projected by the complainant is believable and correct, whereas the defence suggestions put forward by the accused remain only in the realm of suggestions and that no material circumstances were effectively brought in before trial court to remotely vindicate the defence suggestions. Accordingly, the trial court and the appellate court have Crl.R.P.1154/12 - : 7 :- concurrently held that the complainant has successfully proved his case relating to the transactions in question as well as the issuance of the execution of the cheques in question. The said findings cannot said to be perverse or unreasonable. The revision petitioner has no sufficient contentions to demolish the findings of the courts below that the complainant had followed all the statutory formalities before the institution of the abovesaid complaint. 7. It is now argued by Sri.A.Shafeek, learned counsel for the revision petitioner that the loan was taken by the accused in favour of a partnership firm and that therefore the non-impleadment of the partnership firm would lead to dismissal of the complaint, etc. Even in the complaint the accused has been described as proprietor of the International Institute of Information Technology, Mavelikkara. P.W-1 has clearly stated that the loan in question was taken by the accused in the personal capacity and further that the cheques in question have been issued from the personal account maintained by the accused in the State Bank of Travancore, Mavelikkara Branch. Neither in Ext.D-1 reply notice nor in the cross examination of P.W1 has the defence set up a case that she had taken loan for a partnership firm and that the cheques in question were issued from Crl.R.P.1154/12 - : 8 :- the account of the partnership firm. Therefore, the said factual contention now sought to be raised at this revisional stage is not permissible. Even otherwise the said contention is bereft of merit inasmuch as the specific proved case of P.W-1 is that the loan was taken by the accused in personal capacity and that the cheques in question were issued from the personal account maintained by the accused. In this regard it is to be noted that in the judgment in Dr.V.Bala Raju, v. M/s. Pashak Feeds Pvt. Ltd. & Anr. reported in 2005 Crl.L.J. 1129, the Andhra Pradesh High Court has taken the view that a sole proprietary concern is not a company or firm or body corporate or association of individuals as envisaged in Sec.141 of the Negotiable Instruments Act and a person who is not either drawer of the dishonoured cheque or proprietor but is in charge of day to day affairs of the sole proprietary concern, cannot be made liable for offence under Sec.138 of the N.I. Act. In the light of the above settled position, the abovesaid contentions of the petitioner are only to be repelled and it is accordingly overruled. 8. As regards the question of sentence, it is seen that the trial court has imposed substantive sentence for a period of 6 months apart from the direction to pay compensation of Rs. 2.03 Crl.R.P.1154/12 - : 9 :- lakhs. The Apex Court in the case Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SC 1907 held that in cases of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. Further the Apex Court in the case Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566 has held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones and that the gravity of the complaint cannot be equated with an offence under IPC and, instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice. Accordingly, this Court is of the view that the substantive sentence of 6 months' simple imprisonment imposed on the petitioner is onerous and disproportionate. The learned counsel for the 1[st] respondent complainant submits that it is apprehended that the accused is now absconding from the due process of law and that this Court may take note of the abovesaid conduct of the petitioner accused, etc. The cheque amounts in question come to Rs.2 lakhs and therefore the compensation amount of Rs.2.03 lakhs imposed on the petitioner appears to be just and equitable and warrants no Crl.R.P.1154/12 - : 10 :- ## interference. In the light of these aspects, following orders and directions are issued: - (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I. Act as per the impugned judgments will stand confirmed. - (ii) The impugned substantive sentence of simple imprisonment for 6 months imposed on the petitioner is modified and reduced to imprisonment till rising of the court. - (iii) The further direction issued by the trial court as per the impugned judgment that the petitioner should pay Rs.2.03 lakhs to the complainant under Sec. 357(3) of the Cr.P.C. and in default thereof, to undergo simple imprisonment for five months is also confirmed. - (iv) The petitioner is given 3 months' time from 15.3.2017 to pay the said compensation amount of Rs. 2.03 lakhs. - (v) The petitioner will appear before the trial court at 11 a.m. on 17.6.2017 to receive the sentence of imprisonment till rising of the court and to satisfy the trial court about the payment of the compensation amount. Needless to say, on default of payment thereof, the petitioner will have to suffer simple imprisonment for five months. - (vi) On default of the petitioner either to appear before the trial court on 17.6.2017 or on default of payment of the compensation amount, the trial court will be at liberty to proceed against the petitioner in accordance with law. - (viii) The 1[st] respondent will forward a copy of this judgment to the trial court for necessary action. With these observations and directions, the aforecaptioned Revision Petition stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.R.P.1154/12 - : 11 :-