Saji Kumar v. Travancore Rural Development Producer Company Ltd. & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 22[ND] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945** **CRL.REV.PET NO. 535 OF 2023** **AGAINST THE ORDER/JUDGMENT ST 17/2016 OF CHIEF JUDICIAL MAGISTRATE** ## **PATHANAMTHITTA** **CRA 21/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV,** **PATHANAMTHITTA / IV ADDL. M.A.C.T.** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SAJI KUMAR AGED 45 YEARS S/O BALAKRISHNA CHETTIYAR, AJANTHA HOUSE, VAZHAMUTTAM P.O. PATHANAMTHITTA, PIN - 689647** **BY ADV P.S.SYAMKUTTAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 THE TRAVANCORE RURAL DEVELOPMENT PRODUCER COMPANY LTD.ADOOR, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS EXECUTIVE DIRECTOR AND PRINCIPAL OFFICER, ZEENA K., PIN - 691523 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN - 682031** **BY ADVS.MANU RAMACHANDRAN M.KIRANLAL(K/963/2009) R.RAJESH (VARKALA)(K/78/2000) SAMEER M NAIR(K/000481/2017) GEETHU KRISHNAN(K/001199/2021) SAILAKSHMI MENON(K/1518/2021) ABHISHEK JOHNSON(K/1145/2023)** ## **SRI.P.G.MANU, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 535 OF 2023** **2** ## **CR** ## **O R D E R** Dated this the 22[nd] day of August, 2023 This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for convenience), challenging judgment in S.T.17/2016 dated 30.01.2019 on the files of the Chief Judicial Magistrate Court, Pathanamthitta and also in Crl.A.No.21/2019 dated 30.07.2022 on the files of the Additional District & Sessions Judge-IV, Pathanamthitta. 2. The revision petitioner is the sole accused in the above case. The respondents herein are the original complainant as well as State of Kerala. 3. Heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. 4. I shall refer the parties in this revision petition as 'accused' and 'complainant', for convenience. **CRL.REV.PET NO. 535 OF 2023** **3** ## 5. The brief facts of the case: The accused, who had availed loan of Rs.75,000/- on 22.04.2013 and Rs.72,500/- on 21.10.2013 from the complainant company, M/s.Travancore Rural Development Producer Company Ltd. under the Mutual Benefit Fund Scheme, agreed to re-pay the said loan amount in instalments, but the accused failed to re-pay the instalments. Subsequently, the dispute was settled and the accused agreed to pay Rs.1,02,610/- to the complainant and in repayment of the said sum, he had issued a cheque bearing No.0000011 dated 16.10.2015 for Rs.1,02,610/to the complainant company with assurance of encashment. But when the cheque was presented for collection, the same was dishonoured for want of funds. Soon after the dishonor, legal notice was issued demanding the said amount. Since the amount was not paid, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act' hereinafter). **CRL.REV.PET NO. 535 OF 2023** **4** 6. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PW1 was examined and Exts.P1 to P10 marked on the side of the complainant. 7. Although opportunity was given to the accused to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C., no witnesses examined and Exhibits marked on the side of the defence. 8. Thereafter, on appreciation of evidence, after hearing both sides, the learned Magistrate found that the accused committed the offence punishable under Section 138 of the NI Act. Accordingly, he was sentenced as under: _“20. Resultantly, the following sentences of imprisonment and fine are imposed on the accused. The accused is sentenced U/s. 138 of the NI Act to undergo simple imprisonment for 2 months and to pay fine of Rs.205220/-[Two Lakhs five thousand two hundred and twenty only). In case of default in payment of fine the accused shall undergo simple imprisonment for one month more. The fine amount, if realised, shall be given to PW1 as compensation U/s. 357(1) of the_ **CRL.REV.PET NO. 535 OF 2023** **5** _Cr.P.C. If the accused does not pay the fine amount within 60 days from today, PWI is entitled to get interest @ of 9% per annum on the said amount from the date of the judgment to the date of realization. The period of detention, if any, already undergone by the accused during ti- enquiry and trial of the case shall be set off against the term of imprisonment imposed on him U/s. 428 of the Cr.P.C.”_ 9. Aggrieved by the judgment of the Chief Judicial Magistrate Court, Pathanamthitta, the revision petitioner filed appeal before the Sessions Court, Pathanamthitta and on reappreciation of evidence, the learned Additional Sessions Judge confirmed the conviction as well as the sentence imposed by the trial court. 10. It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. Decisions reported in **[(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri; [(2015) 3 SCC 123 : (2015) 2 SCC** **CRL.REV.PET NO. 535 OF 2023** **6** ## **(Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda,** are on this point. 11. In this case, the evidence of PW1 supported by Exts.P1 to P10 were relied on by the courts below to find that the complainant discharged his initial burden in so far as the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin presumptions in favour of the complainant accordingly, on the finding that the accused failed to rebut the presumptions. 12. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I. Act also well settled on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions under Sections 118 and 139 of the N.I. Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of **CRL.REV.PET NO. 535 OF 2023** **7** probabilities. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. See decisions reported in **[2010 (2) KLT 682 (SC)], Rangappa v. Mohan; [2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], Bir Singh v. Mukesh Kumar, [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], Kalamani Tex (M/s.) & anr. v. P.Balasubramanian** . 13. The learned counsel for the revision petitioner argued two points while challenging the judgment of conviction as well as the sentence imposed by the trial court and confirmed by the appellate court. The first point argued by the learned counsel for the revision petitioner is that the complainant miserably failed to substantiate his authority to represent Travancore Rural Development Producer Company Ltd, Adoor. While addressing **CRL.REV.PET NO. 535 OF 2023** **8** this contention, the trial court found that, as per the evidence of PW1, she had given evidence that she was the Chief Officer cum Executive Director of the complainant Company and she had direct knowledge regarding the facts of the case as well as the transaction. Acting on the said evidence, the trial court held that PW1 is competent to represent the Company. Even though this challenge was reiterated before the appellate court, the appellate court also was not inclined to accept this contention. 14. While addressing the merit of this contention, in this case, the complainant produced Exts.P1 cheque, P2 intimation memo, P3 dishonour memo, P4 copy of legal notice, P5 postal receipt, P6 acknowledgment card, P7 application for membership dated 10.12.2012, P8 application for membership dated 20.08.2013, P9 receipt dated 22.04.2013 and P10 receipt dated 21.11.2013 to prove the transaction, issuance of cheque and its dishonour in support of the complainant's case. Thus, it appears that the PW1, being the authorised officer holding the post of Chief Officer cum Executive Director of the complainant **CRL.REV.PET NO. 535 OF 2023** **9** Company, had given evidence in support of the prosecution. Therefore, no serious anomaly could be found in the finding of the courts below that PW1 had authority to represent a company. Therefore, this challenge found to be meritless. 15. The second point argued by the learned counsel for the revision petitioner/accused is that the trial court exceeded the limit while imposing penalty. According to the learned counsel for the revision petitioner/accused, the trial court directed the revision petitioner to pay Rs.2,05,220/-, double the cheque amount, without assigning any reasons. Secondly, it is pointed out that the trial court also granted interest at the rate of 9% per annum to the fine amount, on failure to pay the fine amount within sixty days from the date of the judgment. Accordingly, it is argued by the learned counsel for the revision petitioner/accused that the sentence imposed by the trial court and confirmed by the appellate court is, _per se,_ illegal, since the fine amount exceeded the statutory limit. 16. Per contra, the learned counsel for the first **CRL.REV.PET NO. 535 OF 2023** **10** respondent submitted that grant of double the cheque amount is permitted by statute and for which, the discretion of the court can be exercised and in this case, taking note of the fact that the transaction is of the year 2013 for which the cheque was issued in the year 2015, the trial court granted Rs.2,05,220/-, double the cheque amount, as fine and the same is justifiable. However, the learned counsel for the first respondent also fairly conceded that grant of interest to the fine amount at the rate of 9% per annum from the date of judgment till the date of realisation is not legally permissible. 17. The question arises for consideration is whether courts can impose more than twice the cheque amount, as fine, by way of interest or otherwise, for the offence punishable under Section 138 of the NI Act? 18. While addressing this contention, it is necessary to extract the penal provision when offence under Section 138 of NI Act is found to be committed. _**138. Dishonour of cheque for insufficiency, etc., of funds in the account** .—Where any cheque drawn by a_ **CRL.REV.PET NO. 535 OF 2023** **11** _person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both:_ 19. Going by the statutory restriction, the maximum sentence that can be imposed for commission of offence under Section 138 of the N.I.Act is imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque or with both. The trial court imposed double the cheque amount as fine, taking note of the fact that cheque was issued during 2015, the same cannot be held as excessive and the said reason is justifiable. But as far as grant of interest at the rate of 9% to double the cheque amount from **CRL.REV.PET NO. 535 OF 2023** **12** the date of judgment on failure to pay the fine amount ordered not paid within sixty days, is not legally permissible since the statute permits imposition of fine which may extend to twice the cheque amount and not beyond double the cheque amount. To put it correctly, no amount in excess of double the cheque amount could be imposed as fine. Thus, it appears that the learned Magistrate exceeded the statutory limit and granted 9% interest to the fine amount as in the case of a civil court decree, thereby the amount of fine exceeded the statutory limit, by imposing default clause. In view of the above, the contention raised by the learned counsel for the revision petitioner/accused challenging grant of interest to the fine amount after imposing double the cheque amount as fine is sustainable. However, it is made clear that the courts can impose double the cheque amount as fine or lesser sum, by adding interest thereof, or to compensate the complainant otherwise, by quantifying the amount, but on any contingency the fine amount shall not exceed twice the cheque amount. Therefore, I am inclined to **CRL.REV.PET NO. 535 OF 2023** **13** modify the sentence, so as to maintain the same within the statutory limit. 20. In the result, this revision petition is allowed in part. The conviction stands confirmed and the sentence stands modified, whereby the accused/revision petitioner is sentenced to undergo imprisonment for a day till rising of the court and to pay a fine of Rs.2,05,220/- (Rupees two lakh five thousand two hundred and twenty only) and the said amount shall be given as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. In default of payment of fine, the accused shall undergo imprisonment for a period of four months. 21. Further, in consideration of the request of the learned counsel for the revision petitioner to grant six months' time, I am inclined to grant three months' time from today to pay the fine amount since the learned counsel for the first respondent opposed grant of six months highlighting the long delay in paying the fine amount. 22. The revision petitioner/accused is directed to appear **CRL.REV.PET NO. 535 OF 2023** **14** before the trial court on 21.11.2023 to pay the fine amount and to undergo the modified sentence. Execution of the sentence stands deferred till 20.11.2023. If the revision petitioner/accused fails to appear before the trial court, as directed, the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. **Sd/-** **A. BADHARUDEEN JUDGE** nkr