Sajeesh K.V v Joji Thomas & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939** **Crl.Rev.Pet.No. 1136 of 2017 ()** **-------------------------------CRA 220/2015 OF SESSIONS COURT KOZHIKODE-III CC 247/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THAMARASSERY** **---------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **SAJEESH K.V, S/O. SANKARAN, KARINGAMKANDATHIL HOUSE, KOODATHAI BAZAR, KOZHIKODE DISTRICT** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. JOJI THOMAS, S/O. THOMAS, PUTHEYADATH HOUSE, POST KODENCHERY, KOZHIKODE 673 001** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682 031** **R1 BY ADVS. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA SMT V.BHARGAVI** **R2 BY PUBLIC PROSECUTOR SRI JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **KV.** ## **ALEXANDER THOMAS, J.** -------------------------- ## **Crl.R.P. No. 1136 of 2017** ------------------------------Dated this the 14[th] day of November, 2017 ## **ORDER** The petitioner is the accused for offence punishable under Section 138 of the Negotiable Instruments Act, in C.C.No. 247 of 2014 on the file of the Judicial First Class Magistrate Court-II, Thamarassery, instituted on the basis of a complaint filed by the 1[st] respondent herein. 2. The trial court as per the impugned judgment rendered on 08.05.2015 has convicted the petitioner for the aforesaid offence and sentenced to undergo simple imprisonment for six months and to pay Rs.3,36,000/- as compensation to the complainant under Section 357 (1)(b) of the Code of Criminal Procedure, and in default thereof to undergo simple imprisonment for a further period of 45 days. Aggrieved thereby the petitioner had preferred Crl.Appeal No.220 of 2015 before the Court of Sessions Judge, Kozhikode. The appellate Sessions Court as per the impugned judgment rendered on 08.07.2016 has confirmed the above said conviction and has dismissed the said appeal thereby confirming the conviction and sentence passed by the trial court. It is aggrieved by these verdicts of both the courts below, the petitioner has preferred the instant revision petition by invoking the remedies under Section 397 and 401 of Cr.P.C. 3. Heard Sri.Sunny Mathew, learned counsel appearing for the revision petitioner/accused, Smt.V.Bhargavi, learned counsel appearing Crl.R.P. No. 1136 of 2017 2 for R1/Complainant and Sri.Jestin Mathew, learned Public Prosecutor appearing for R2/State. 4. The brief of the case of the complainant is to the effect that the complainant was well known to the accused, who is conducting a petrol bunk business in Kodanchery with his relative. On 14.12.2013 the accused had received an amount of Rs.3,00,000/- from him for the purpose of the running of the petrol bunk with a promise that the amount will be repaid on 30.12.2013 for which he had issued Ext.P1 cheque dated 30.12.2013 for Rs.3,00,000/-. The cheque when presented, was dishonoured as evident from Exts.P2 and P3 bank memos and hence the complainant had issued Exts.P4 statutory demand notice dated 28.01.2014 under Section 138(b) of NI Act, the said notice sent by registered post was duly received by the accused as per Ext.P6 acknowledgement card. Accused had not paid the amount and had not responded to the said notice, thereupon the complainant, after fulfilling the requisite formalities, had instituted the present complaint which resulted in the trial. 5. During the trial, the complainant was examined as PW1/complainant and PW2 and was marked Exts.P1 to P6 documents. The accused was examined as DW1. But does not adduced any documentary evidence. 6. The defence set up by the accused when he had tendered Crl.R.P. No. 1136 of 2017 3 oral evidence of PW1 that the parties were well known to each other and that based on the request of the accused, the complainant had advanced an amount of Rs.3,00,000/- as loan for the purpose of running the petrol bunk business, which was conducted by the accused with his relative, with the understanding of the amount will be repaid on 30.12.2013 for which the instant Ext.P1 cheque was issued which resulted in dishonour. PW2 has deposed that he had witnessed the above said borrowal transaction and handing over of the cheque by the accused. The main defence taken up by the accused at the time of cross examination of PW1 was to the effect that the accused had never entered into any transaction with the complainant in the manner alleged in the complaint and further that he was not running the petrol bunk business but that he was only an employee of the said petroleum sale outlet, which was run by his father's younger brother (uncle) and that before he had commenced his employment, the proprietor/uncle of the accused, had insisted that the accused should give a blank signed cheque as security as he has to deal with cash in running of the petrol bunk business, and therefore, Ext.P1 cheque was given as a blank signed cheque as security to his uncle/proprietor. Further that the uncle/proprietor of the petrol bunk had some transactions with the complainant and in discharge of that liability, the uncle of the accused has misused the above said cheque and the complainant was falsely Crl.R.P. No. 1136 of 2017 4 implicated into the above complaint. But in a later stage, the defence set up by the accused was that the complainant used to buy petrol on credit from the petrol bunk and there is some dispute about credit between the complainant and the accused, due to this enmity, the complainant had filed the present complaint against the accused. At that stage the accused had no case that he had given any cheque to the owner of the petrol bunk as security, and further he had no case that the blank cheque issued by him to the owner of the petrol bunk is the same as the one in, Ext.P1. The trial court found that it was not suggested to the complainant that Ext.P1 cheque was obtained by him through the proprietor of the petrol bunk etc. 7. The trial court has noted that during cross examination of PW2, that the accused had no contention whatsoever that he had issued any blank signed cheque as security through the proprietor of the petrol bunk when he commenced his employment there. During Section 313 (1)(b) of Cr.P.C., questioning also the accused had taken the stand that he had issued Ext.P1 cheque as a blank signed one towards security to the proprietor of the petrol bunk. The courts below have found that the accused has varied his defence during cross examination of PW1 and subsequently when he had entered in to the witness box etc. That apart it was also found that except by raising certain suggestions, no clinching circumstances could be brought on record to establish the veracity of Crl.R.P. No. 1136 of 2017 5 such defence plea taken by the accused. Whereas the court below found that the evidence of PW1 is believable and tenable. Since one of the defence taken by the accused that the blank signed cheque was given, statutory presumption is attracted and that the accused has not been able to rebut the said statutory presumption. In the light of all these aspects, the court below have found that the accused is liable to be acquitted for the offence punishable under Section 138 of NI Act. These findings and facts cannot be said to be vitiated by perversity or illegality. Hence, this Court is not in a position to interfere with those concurrent findings and facts regarding the conviction of the petitioner for the offence punishable under Section 138 of NI Act. In the result, the concurrent findings made by the courts below regarding the conviction of the petitioner is legally proper and correct and is not amenable for any revisional interference at the hands of this Court. 6. As far as the sentence is concerned, it is seen that the trial court had sentenced the revision petitioner/accused to undergo simple imprisonment for six months with a direction to pay fine of Rs.3,36,000/-, which is inclusive of the interest of the cheque amount of Rs.3,00,000/-, with a default sentence clause of 45 days simple imprisonment. The appellate court has concurred the said sentence and compensation amount. The Apex Court, in _**Damodar S. Prabhu v. Sayed Babalal.H**_ **AIR 2010 SC 1907** _**and Kaushalya Devi**_ Crl.R.P. No. 1136 of 2017 6 _**Massand v. Roopkishore**_ **AIR 2011 SC 2566** , has held that the offence of dishonour of cheque envisaged in Section 138 o NI Act is essentially a civil wrong which has been given criminal overtones by the legislative interventions made through the amendments of the NI Act and that imposition of fine payable as compensation to the complainant would be sufficient to meet the ends of justice. Unless there are exceptional and compelling circumstances warranting the imposition of substantive sentence, sentence of appropriate fine amount would suffice. This Court is definitely of the view that the substantive sentence of six months simple imprisonment imposed by the courts below is rather excessive and disproportionate. The same will stand modified and reduced as simple imprisonment till rising of the court. 7. Sri.Sunny Mathew, learned counsel appearing for the revision petitioner/accused submits that the accused is now facing financial difficulties and in case this Court is inclined to confirm the conviction and the compensation amount etc., then the compensation amount may be limited to Rs.3,00,000/-, which is the cheque amount and that petitioner will be given at least ten months time to pay the aforesaid amount directly to the complainant. Further it is pointed out by the petitioner that an amount of Rs.35,000/- is already deposited before the trial court in relation to this case at the time of appellate consideration and that the said amount may be deducted from the Crl.R.P. No. 1136 of 2017 7 ## compensation amount payable by the petitioner. 8. Smt.V.Bhargavi, learned counsel appearing for the complainant submits on the basis of instructions from her party that the complainant would leave the fixation of the compensation amount in an appropriate manner to the discretion of this Court, but that time by more than six months may not be granted to the petitioner, having regard to the pendency of the complaint. On a consideration of the rival pleas, this Court is inclined to grant 8 months time to the petitioner to pay the compensation amount after deducting the amounts, if any, already deposited before the trial court. Accordingly the following directions and orders are passed: - _i. The impugned conviction, imposed on the petitioner for the offence punishable under Section 138 of NI Act will stand confirmed._ - _ii. The impugned substantive sentence of simple imprisonment for six months is reduced to simple imprisonment till rising of the court._ - _iii.In case the petitioner is already deposited Rs.35,000/- before the trial court in relation to this case, the said amount shall be forthwith released to the complainant, on a request in that regard made by that party._ - _iv. In supersession of the orders passed by the courts below, it is ordered that the compensation amount paid by the petitioner in terms of Section 357(3) of Cr.P.C. will stand fixed as Rs.3,00,000/-. The petitioner is given 8 months' time to pay the aforesaid amount of Rs.3,00,000/- (after deducting the amounts, if any, deposited before the trial court), directly to the complainant._ - _v. In such payments directly made by the petitioner to the complainant, will be treated as those amounts have been paid as fine and then disbursed as compensation to the complainant in terms of Section 357(1)\(b) of Cr.P.C._ Crl.R.P. No. 1136 of 2017 8 - _vi. As far as possible, the petitioner will endeavour shall pay the above said balance compensation amount directly to the petitioner in 4-5 installments._ - _vii.After receiving such amounts, the complainant will give necessary receipts for such payments, so as to enable the accused to produce the same before the trial court to satisfy the said court about such payments._ - _viii.Petitioner shall personally appear before the trial court at 11 a.m. on 21.07.2018 to receive the sentence of simple imprisonment till rising of the court and to satisfy the said court about the payment of the total compensation amount of Rs.3,00,000/- (inclusive of the amounts if any deposited before the trial court) directly to the complainant. On default of the petitioner to pay the said amount, he will have to suffer simple imprisonment for a period of two months._ - _ix. Until 21.07.2018 all coercive steps that may be taken against the petitioner for execution of the impugned sentence in this case will stand deferred._ 9. Registry will forward a certified copy of this order to the trial court for necessary information. With these observations and directions, this Crl.R.P. will stand finally disposed of. sd/- AMV/06/12/2017 /TRUE COPY/ P.A.TO JUDGE