High Court of KeralaSingle Judge2015-10-19Revision petition dismissed; six months to pay ...

Sabukhan S. v. Mammen Abraham and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.1249 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2015-10-19
Court Decision / Holding: The revision petition is dismissed. The revision petitioner Sabukhan S. is directed to pay the compensation of Rs. 1,55,000 under Section 357(3) Cr.P.C. within six months, and no interference is made with the conviction under Section 138 NI Act.
Final Disposition: Revision petition dismissed; six months to pay compensation.

Parties to the Case

Appellants / Petitioners

Sabukhan S.

Respondents

Mammen Abraham
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Philip M. Varughese

Counsels for Respondents

• Sri T. Madhu
• Public Prosecutor, Shri R. Githesh

Case Synopsis & Summary

This is a criminal revision petition filed by Sabukhan S., challenging a conviction under Section 138 of the Negotiable Instruments Act, 1881, by the Judicial Magistrate of First Class, Pathanamthitta, which was upheld on appeal with modification of the sentence. The trial court held that the revision petitioner issued Ext. P1 cheque to discharge a liability to the complainant, which bounced due to insufficient funds. The complainant examined PW1 and relied on Exts. P1–P6; Ext. P4 was the statutory notice. The defense argued that the source of income of the complainant had not been proved, citing K. Subramani v. K. Damodara Naidu to contend that without proven source of funds the conviction could not stand; they also contended that Ext. P4 did not specify the exact demand for the cheque amount, citing Rahul Builders v. Arihant Fertilizers and Chemical. The courts below found the complainant had the capacity to lend the amount and that Ext. P4 communicated a demand for Rs. 1,50,000. The High Court, however, observed concurrent factual findings and held there was no perversity in them. It distinguished the cited case law and ultimately dismissed the revision petition while granting six months to pay the compensation. The outcome upheld the conviction and adjusted the sentence to imprisonment till rising of the court with compensation.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) Cr.P.C.Clause (b) to Section 138, NI Act

Legal Doctrines & Maxims

Preponderance of probabilities (yardstick for evaluating evidentiary claims)
Appellate principle: concurrent findings can be interfered with only if perverse or incorrect

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the complainant’s source of income has not been proved and cites K.Subramani v. K. Damodara Naidu to argue that without proven funds the conviction cannot stand. The argument also targets the sufficiency of Ext. P4 notice for demanding the cheque amount, relying on Rahul Builders v. Arihant Fertilizers and Chemical. The defense further challenges the theory that the cheque was misused as a blank guarantor cheque and argues that the absence of precise lending dates is not fatal. The petitioner asserts that the trial court’s findings on the source of funds and the loan relationship require scrutiny and that the evidence does not conclusively establish the liability, urging quashing of the conviction and sentence.

Contentions of Respondents

The prosecution argues that PW1 established that he lent Rs. 1,50,000 to the petitioner and that the accommodation of credit was proven by his status as an income tax payer and operator of an Air Travel Agency. The notice Ext. P4 is seen as containing a clear demand for the amount due. The courts below correctly found that the accused issued Ext. P1 in discharge of the liability under Sec. 138 NI Act, and that the defense theory lacks corroborative material. They contend that the applicant’s challenge to the source of income is not tenable in light of the complainant’s capacity to lend and the corroborative evidence. The appellate and trial court findings are consistent and should not be interfered with on revision.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
K.Subramani v. K. Damodara Naidu	2015 (1) SCC 99	Distinguished	The High Court noted the facts differ from K.Subramani; the decision is not applicable to the present case because the source of income and specific circumstances differ.
Rahul Builders v. Arihant Fertilizers and Chemical	2007(4) KLT 977 (SC)	Mentioned Only	Cited to discuss the requirement of a demand in the notice under Sec. 138 NI Act; the present Ext. P4 notice itself contained the demanded amount, limiting the persuasive value of Rahul Builders in this case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Sabukhan S. v. Mammen Abraham and State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 19TH DAY OF OCTOBER 2015/27TH ASWINA, 1937 Crl.Rev.Pet.No. 1249 of 2015 () -------------------------------- Crl.A 192/2011 of SESSIONS COURT,PATHANAMTHITTA ST 2174/2007 of J.M.F.C.-I,PATHANAMTHITTA ## REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------- SABUKHAN.S., AGED 36 YEARS S/O. SALIM RAWTHER, VETTARAPARAMBIL HOUSE KADAKKAD SOUTH, M.M. JUNCTION, PANDALAM P.O -689 501. BY ADV. SRI.PHILIP M.VARUGHESE ## RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------------------------------------------------------- ## 1. MAMMEN ABRAHAM, AGED 51 YEARS S/O. P.G. MAMMEN, PATHALIL JUS VILLA, THAHEVETTIPURAM MYLAPRA P.O, PATHANAMTHITTA, PANDALAM P.O. - 689 501. ## 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.T.MADHU R1 BY ADV. SRI.ROY THOMAS (PATHANAMTHITTA) R2 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-10-2015, THE COURT ON 19-10-2015 PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.1249 of 2015 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of October 2015 ## O R D E R The revision petitioner is the accused in S.T. No.2174 of 2007 on the files of the Judicial Magistrate of First Class -1, Pathanamthitta. 2. The trial court convicted the revision petitioner under Section 138 of the N.I. Act and sentenced him thereunder to simple imprisonment for nine months and to pay a compensation of Rs.1,55,000/- to the complainant under Section 357(3) Cr.P.C. In the appeal, the conviction was confirmed and the sentence was modified and reduced to imprisonment till the rising of the court and to pay a Crl.R.P.1249/2015 : 2 : compensation of Rs.1,55,000/- to the complainant under Section 357(3) Cr.P.C. Aggrieved by the said conviction and sentence, this revision petition has been filed. 3. Heard. 4. The prosecution allegation is that towards the discharge of the liability of the revision petitioner to the complainant, the revision petitioner issued Ext.P1 cheque in favour of the complainant. The complainant presented the said cheque for encashment. However, the same was dishonoured due to insufficiency of funds in the account of the revision petitioner. Statutory notice was issued on behalf of the complainant, which was received by the revision petitioner. However, the revision petitioner did not pay the cheque amount within the statutory period or Crl.R.P.1249/2015 : 3 : thereafter. 5. Before the trial court, PW1 was examined and Exts.P1 to P6 were marked for the complainant. No evidence was adduced on the side of the revision petitioner. 6. The learned counsel for the revision petitioner relied on the decision of the Apex Court in **K.Subramani v. K. Damodara Naidu** [(2015)1 SCC 99] and argued that since the source of income was not proved by the complainant, the conviction and sentence cannot be sustained. In **K.Subramani** (supra), the source of amount claimed by the complainant was the savings from his salary and an amount of Rs.5,00,000/- derived from the sale of his property. However, there was no averment with regard to the said sale in the complaint or in chief-examination of the Crl.R.P.1249/2015 : 4 : complainant or in his income tax return. The complainant obtained a loan of Rs.1,49,205/- from L.I.C. in the year 1997, which was the year in which the alleged amount of Rs.14,00,000/- was claimed to have been disbursed to the accused in that case. The wife of the complainant in another criminal case stated that the present accused had not taken any loan from her husband. In the said circumstances, the Apex court found that the trial court rightly came to the conclusion that the complainant had no source of income to lend a sum of Rs.14,00,000/- to the accused in that case. Facts of this case are different from the facts in **K.Subramani** (supra). In this case, the complainant stated that an amount of Rs.1,50,000/- was borrowed by the revision petitioner from the complainant Crl.R.P.1249/2015 : 5 : and towards the discharge of the said liability, the revision petitioner issued Ext.P1 cheque in favour of the complainant. PW1 stated that he was conducting an Air Travel Agency during the period of the transaction in this case. He started the said business nearly 10 years prior to the transaction in this case. PW1 stated that he was an income tax assessee. The said part of the evidence of PW1 was not assailed in cross-examination. PW1 advanced the amount to the revision petitioner as the revision petitioner was a friend of PW1. Having gone through the evidence of PW1, I am satisfied that PW1 had the capacity to advance Rs.1,50,000/- to the revision petitioner. After evaluating the oral evidence of PW1, the courts below also concurrently found that the complainant had the capacity to Crl.R.P.1249/2015 : 6 : advance the amount covered by Ext.P1 cheque to the revision petitioner. In the said circumstances, the facts in **K.Subramani** (supra) are not applicable to the case in hand. 7. It was not stated by PW1 regarding the exact date on which the amount was borrowed. However, PW1 clearly stated that the revision petitioner requested for the amount during May 2007 and after two days, the money was paid by the complainant to the revision petitioner, on the assurance that the amount would be repaid within three months. PW1 had close association with the revision petitioner for about six years. In the said circumstances, the non-mentioning of the exact date of lending the money is not fatal to the prosecution case as argued by the learned counsel for the revision petitioner. Crl.R.P.1249/2015 : 7 : 8. It has been further argued by the learned counsel for the revision petitioner that Ext.P4 notice did not contain any demand for the cheque amount and hence there is no demand as contemplated under clause (b) to Section 138 of N.I. Act and consequently, the conviction cannot be sustainable. The learned counsel for the revision petitioner has relied on the decision of the Apex Court in **Rahul Builders v. Arihant Fertilizers and Chemical** [2007(4) KLT 977 (SC)] to buttress his argument. In **Rahul Builders** (supra), the Apex Court held that an omnibus notice without specifying as to what the amount due under the dishonoured cheque would not subserve the requirement of law. In this case, a reading of Ext.P4 would clearly show that the complainant made demand for Crl.R.P.1249/2015 : 8 : the Rs.1,50,000/-, which was the amount covered by Ext.P1 cheque, in the said notice. Therefore, the argument in this regard advanced by the learned counsel fails. 9. The courts below, after evaluating the oral and documentary evidence adduced by the complainant found that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I. Act. The defence had a contention that the revision petitioner had issued a blank signed cheque as a guarantor in a transaction between the complainant and another person and the said cheque had been mis-utilised by the complainant to file the present complaint. Eventhough, a suggestion in this regard was put to PW1 during his cross-examination, PW1 denied the same. There is absolutely no material before the Crl.R.P.1249/2015 : 9 : Court to substantiate the said contention of the revision petitioner by the yardstick of preponderance of probabilities and possibilities. Therefore, the courts below rightly repelled the said contention set up by the defence. Since there is concurrent finding on facts, this Court will not be justified in interfering with the same unless the finding is perverse or incorrect. In this case, no circumstance has been brought to my notice to indicate that the appreciation of evidence by the courts below was perverse or incorrect. Having gone through the relevant inputs, I do not find any reason to interfere with the concurrent finding of the courts below that the revision petitioner committed the offence under Section 138 of N.I. Act. Crl.R.P.1249/2015 : 10 : 10. The sentence awarded by the courts below also does not call for any interference by this court. In the result, this revision petition stands dismissed. The revision petitioner is granted six months to pay the compensation. Sd/ **B.SUDHEENDRA KUMAR, JUDGE** _dl_ _// True Copy // PA to Judge_