Santosh M v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 2186 of 2014 ()** **---------------------------------------** **AGAINST THE JUDGMENT IN Crl. APPEAL 186/2013 of THE ADDL. SESSIONS COURT, PALAKKAD, DATED 21-06-2014** **AGAINST THE JUDGMENT IN ST 1421/2009 of J.M.F.C.- I,PALAKKAD, DATED 17-03-2012** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------------------------------------** **SANTHOSH .M, AGED 36 YEARS, S/O.MOHANAN.P, 29/188, SANTHOSH VIHAR, SOMAVARAMADAM, KARNAKINAGAR, PALAKKAD.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** ## **RESPONDENT(S):** **-------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. SREE GOKULAM CHIT AND FINANCE CO.(P) LTD.** **DIVISION OFFICE AT SANJOS TOWERS, OPP.KSRTC BUS STAND, SHORNUR ROAD, PALAKKAD. REP.BY ITS LEGAL CLERK K.K.SUBASHKUMAR, S/O.KRISHNAN, AGED 27 YEARS, RESIDING AT PULINELLI, KOTTAYI, PALAKKAD-678 021.** **R2 BY ADV. SRI.MAHESH V RAMAKRISHNAN R1 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 1812-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.2186 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 18[th] day of December, 2014 ## **O R D E R** Accused in S.T.No.1421/2009 on the file of the Judicial First Class Magistrate Court-I, Palakkad, is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the 2[nd] respondent against the revision petitioner, alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 3. The case of the complainant in the complaint was that, revision petitioner was a subscriber to the chitty and also he had stood as a surety for the chitty bid by one Bhakthavalsalan and an amount of ₹2,27,226/was due in both these chitties and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonoured for the reasons 'funds insufficient'. This was intimated to the complainant evidenced by Ext.P3 memo. The complainant issued 2 Crl. R. P. No.2186 of 2014 Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgement. The revision petitioner had not paid the amount. So she had committed the offence punishable under Section 138 of the Act. Hence the complaint. 4. When the revision petitioner appeared through counsel before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty through the counsel. Thereafter the authorized agent of the complainant company was examined as PW1 and Exts.P1 to P8 were marked on their side. After closure of the complainant's evidence, since the revision petitioner was exempted from personal appearance, questioning under Section 313 of the Code of Criminal Procedure was dispensed with invoking the proviso to Section 313(1)(b) of the Code of Criminal Procedure. The revision petitioner had not adduced any defence evidence. After considering the evidence on record, the court below found the revision petitioner 3 Crl. R. P. No.2186 of 2014 guilty under Section 138 of the Negotiable Instruments Act and convicted him thereunder and sentenced him to undergo simple imprisonment for two months and also to pay the cheque amount of 2,27,226/-, as compensation₹ with default sentence of two months simple imprisonment under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.186/2013 before the Sessions Court, Palakkad, which was made over to Additional Sessions Court, Palakkad, for disposal and the learned Additional Sessions Judge, allowed the appeal in part, confirming the order of conviction and also direction to pay compensation with default sentence, but reduced the substantive sentence to imprisonment, till rising of the court. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below. 5. Since the respondent had appeared through counsel in the delay condonation application and expressed willingness to appear in the revision also, this 4 Crl. R. P. No.2186 of 2014 court felt that the revision can be admitted and disposed of on merit today itself, after hearing both sides. So the revision is admitted, heard and disposed of today itself. 6. The counsel for the revision petitioner submitted that, the examination of PW1 is not sufficient to prove the execution of the cheque. Further the cheque was returned for the reasons ‘account closed’ and not for the reasons mentioned in Section 138 of the Act and as such no offence under Section 138 is attracted. Courts below have not considered the defence raised in the right perspective and the conviction entered is not proper. 7. On the other hand, the counsel for the 2[nd] respondent submitted that, there is no dispute regarding the amount involved, or signature in the cheque and no document has been produced to prove the discharge as well. So the concurrent findings of the court below on this aspect on facts do not call for any interference. 8. Heard the Public Prosecutor also. 9. The case of the complainant in the complaint was that, revision petitioner is a subscriber to Crl. R. P. No.2186 of 2014 5 one chitty for 2,00,000/- and he is stood as a surety for₹ the chitty subscribed by one Bhakthavalsalan for an amount of 3,00,000/- and both the chitties were bid by₹ the revision petitioner and the said Bhakthavalsalan and an amount of 45,279/- was due in the chitty account of₹ the revision petitioner and 1,81,947/- was due in the₹ chitty of said Bhakthavalsalan and when default committed, it was intimated to the revision petitioner, revision petitioner came to the office and undertook to pay the entire amount due under two chitties to an amount of ₹2,27,226/- and issued Ext.P1 cheque in discharge of that liability. The case of the revision petitioner was that, the blank signed cheque given as security was misused. In order to prove the case of the complainant, PW1, the authorised person as per Ext.P7 minutes was examined and he deposed in support of the case of the complainant in the complaint. He had denied the suggestion that blank signed cheque given was misused. Except giving a suggestion, no other evidence adduced on the side of the revision petitioner to prove Crl. R. P. No.2186 of 2014 6 this fact. He had no dispute regarding the signature in the cheque. Further he had also no case that, it was not the cheque given from the account maintained by him as well. It is true that the cheque was returned for the reasons ‘account closed’. But in the decision reported in **Lakshmi Dyechem (M/s.) v. State of Gujarath and Others (2012(4) KHC 826)** , the Hon'ble Supreme Court has held that, even if the cheque was returned for the reason account closed, payment stopped, refer to drawer or signature does not match, even then the offence under Section 138 of the Act is attracted and it is for the accused to prove the reason for issuing stop payment and that must be informed to the complainant and he must prove that there was sufficient fund in the account at that time and he had valid reason for issuing stop memo. Since the account was closed, it can be presumed that there is no fund in the account to honour the cheque when it was presented. Further he did not send any reply to the notice issued as well. In the decision reported in **John Scaria v. State of Kerala (2006(4) KLT 290)** , it Crl. R. P. No.2186 of 2014 7 has been observed that non sending of reply will go to show that the complainant's case is true and that was reason why the revision petitioner did not send any reply. In the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption under Section 139 of the Act, the courts below were perfectly justified in relying on the evidence of PW1 and the statutory presumption available under Section 139 and 118 of the Act, and convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on this aspect and facts do not call for any interference. 10. As regards the sentence is concerned, the court below had sentenced him to undergo simple imprisonment for two months and also directed to pay the cheque amount of 2,27,276/- as compensation to the₹ complainant, in default to undergo simple imprisonment for two months more under Section 357(3) of the Code of Criminal Procedure. But the appellate court had reduced the substantive sentence to imprisonment, till rising of 8 Crl. R. P. No.2186 of 2014 the court, while confirming the direction to pay compensation with default sentence under Section 357(3) of the Code of Criminal Procedure. But in the decision reported in **Somanath Sarkar v. Utpal Basu Mallick [2013(4) KLT 350 (S.C.)]** , the Hon’ble Supreme Court has observed that, there is no provision for payment of compensation in a case under Section 138 of the Negotiable Instruments Act. But court has got power to impose double the cheque amount as fine and if the fine is quantified, then compensation can be awarded out of the fine amount invoking the power under Section 357(1) (b) of the Code. So considering this fact, this court feels that, compensation can be converted to fine and direction to pay compensation out of the fine amount can be made to meet the ends of justice. Maximum leniency has been shown by the court below in imposing the sentence. So the sentence is modified as follows: The revision petitioner is sentenced to undergo imprisonment till rising of the court and also to pay a fine of 2,27,276/-, in default to undergo simple imprisonment₹ Crl. R. P. No.2186 of 2014 9 for two months and if the amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. The counsel for the revision petitioner prayed six months time for payment of the amount. Considering the amount involved, this court feels that the same can be granted. So the revision petitioner is granted time till 18.06.2015 to pay the amount. Till then the execution of sentence is directed to be kept in abeyance. With the above modification of the sentence as mentioned above and the direction granting time, the revision petition is disposed of accordingly. Office is directed to communicate this order to the court below at the earliest. Sd/- ## **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss