Saji Sebastian v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 Crl.Rev.Pet.No. 3321 of 2010() -----------------------------CRA.229/2009 of SESSIONS COURT, KASARAGOD CC.122/2009 of JFCM-II (ADDL.MUNSIFF, KASARAGOD) .................... ## A.PADMAKUMAR, MANAGER, DR.AMBEDKAR AND SCIENCE COLLEGE, PERIYA, KASARAGOD TALUK BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA SRI.ANEESH JOSEPH SMT.C.J.AJITHA ## 1. SAJI SEBASTIAN, GERP ELECTRAWORLD, MUNICIPAL SHOPPING COMPLEX, NEW BUS STAND, KASARAGOD TALUK AND DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER SRI.GOKULCHANDRAN P.V. S/O.LATE P.V.NAMBOODIRI, PULLERI,KRISHNA NAGAR NEW BUS STAND KASARAGOD TALUK AND DISTRICT- 671315 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/11/2010, THE COURT ON THE SAME DAY PASSED THE ## **V.K.MOHANAN, J.** ## **-----------------------------------------Crl.R.P. No.3321 of 2010 ----------------------------------------** Dated the 11th Day of November, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that towards the discharge a liability of a sum of Rs.1,50,000/- which is due to the complainant out of business transaction , the accused issued a cheque for a sum of Rs.1,50,000/-, which when presented for encashment, was dishonoured due to the reason “funds insufficient” and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Chief Judicial Magistrate, Kasaragod wherein cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.167/2009, but subsequently, the case was made CRL.R.P 3321/10 ## **-:2:-** over to the court of Judicial First Class Magistrate-II, (Additional Munsiff), Kasaragod. During the course of trial, from the side of the complainant, PW1 was examined and Exts.P1 to P6 were produced and marked. From the side of the defence, no evidence, either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioneraccused to undergo simple imprisonment for one month and directed him to pay compensation of Rs.1,50,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of two months. CRL.R.P 3321/10 ## **-:3:-** 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 6.10.2010 in Crl.A.No. 229/2009, the court of Sessions Judge, Kasaragod dismissed the appeal confirming the conviction and sentence. It is the above order of conviction and sentence and the judgments of the courts below are challenged in this Crl.Revision Petition. 4. I have heard the learned counsel for the revision petitioner and also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner vehemently submitted that the payee of Ext.P1 cheque is one Gerp and not that of the complainant. But the courts below miserably failed to consider the above factual question. I am unable to sustain the above contention. As indicated in the cause title, the complainant is Saji Sebastian, Proprietor, Gerp Electraworld, represented by his power of attorney holder who is examined as PW1. Before the initiation of the prosecution, the complainant has CRL.R.P 3321/10 ## **-:4:-** already sent Ext.P4 lawyer notice dated 31.12.2008. But though the said notice received by the revision petitioner/accused, no reply was given to the complainant. Of course , the accused is entitled to keep silent. In the present case, the revision petitioner has not produced any evidence to substantiate the defence version whatsoever it may be. 6. Going by the judgment of the trial court as well as the appellate court it appears that the question now raised by the revision petitioner was not raised either before the trial court or before the appellate court. The failure on the part of the revision petitioner in sending a proper reply to Ext.P4 notice assumes importance at this juncture. When PW1 was examined there was no serious challenge during the cross examination against his capacity or authority to file the complaint. However, it is a fact that Ext.P1 cheque was produced by the complainant from their possession and there was no proper account as to how Ext.P1 cheuqe reached in the possession of the complainant. In paragraph 9 and 10, the trial court has elaborately considered the CRL.R.P 3321/10 **-:5:-** transaction between the complainant and the accused and also referred vital document to substantiate the transaction which referred therein. On the basis of the above materials and evidence, both the trial court as well as the appellate court came into a conclusion that neither the complainant nor the accused are strangers because there were frequent transaction. The oral evidence adduced by the complainant through PW1 which referred by the courts below further reiterate the allegation of the complainant and the liability of the accused/revision petitioner. 7. It is relevant to note that the complainant has produced the bill book of the the firm i.e. Ext.P7. Ext.P7(a) is the copy of the bill with invoice No.213 issued to the accused. Ext.P7(b) is is invoice No.212 and the carbon copy of invoice No.660 was marked as Ext.P7(c). PW1, according to the trial court, deposed that Ext.P1 cheque was issued by the accused for the liability as per Ext.P7 series. The learned Magistrate has specifically found that “ on a perusal of Ext.P7 bill book by Grep Electraworld Municipal shopping complex, Kasaragod with writings grepeft CRL.R.P 3321/10 **-:6:-** www,grepeft. com contains a transaction for Rs.16,000/-”. It is on the basis of the above materials and evidence, the trial court as well as the appellate court have concurrently endorsed the liability of the accused/revision petitioner and I find no reason to interfere with such concurrent findings. Therefore, there is no merit in the contention raised by the learned counsel for the revision petitioner. 8. Regarding the sentence, the learned counsel submitted that the sentence imposed is exorbitant and the same may be set aside and it is also the submission of the learned counsel that a breathing time may be granted to pay the compensation amount. As per the records, Ext.P1 cheque is dated 30.7.2008, that too for Rs.1,50,000/-. As per the findings of the courts below, though such amount is belonging to the the complainant, the same is with the revision petitioners for the last two years. The Apex Court, in its recent decision in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore, CRL.R.P 3321/10 **-:7:-** according to me the sentence of imprisonment ordered by the courts below requires some modification, but at the same time the compensation amount can be enhanced slightly considering the fact that the the amount is due to the complainant for the last two years. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act, as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the courts below is modified and reduced into one day simple imprisonment, i.e. till the rising of the court and the revision petitioner is further directed to pay a compensation of Rs.1,65,000/- to the complainant within 45 days from today, in default, he is directed to undergo simple imprisonment for three months . Accordingly the revision petitioner is directed to appear before the trial court on **27th December, 2010** to receive the sentence and to pay the compensation amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision CRL.R.P 3321/10 ## **-:8:-** petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive steps, if any, pending shall be deferred till 27.12.2010 This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-