Shaji P.K. v. Saneesh K.S. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF OCTOBER 2017/27TH ASWINA, 1939** **Crl.Rev.Pet.No. 818 of 2017 ()** **------------------------------CRA.132/2015 of ADDL. SESSIONS COURT - VII, ERNAKULAM CC.2145/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOCHI** **REVISION PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------** **SHAJI P.K., S/O.KRISHNAN, PONGATHARA (H), PALLATHAKULANGARA, AYYAMPILLY P.O., KUZHIPPILLY-682501, NOW RESIDING AT VATHERIPARAMBIL HOUSE, PALLATHUKULANGARA, AYYAMPILLY P.O., KUZHIPPILLY-682501.** **BY ADVS.SRI.P.CHANDRASEKHAR SRI.SOORAJ T.ELENJICKAL SRI.K.ARJUN VENUGOPAL SMT.MARY RESHMA GEORGE SMT.V.A.HARITHA SMT.SANDHYA R.NAIR SMT.P.M.MAZNA MANSOOR** **RESPONDENT(S)/RESPONDENT/COMPLAINANT/STATE:** **-------------------------------------------** **1. SANEESH K.S.,** **S/O.SALI, KOLAMPARAMBIL HOUSE, AZHEEKAL P.O., MURIKUMPADAM, ERNAKULAM-682510.** **2. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **R1 BY ADVS. SMT.K.A.ANGEL TREENA SMT.ARLISS TRENCY ANTONY** **R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** **ALEXANDER THOMAS, J. .................................................................... Crl.RP No.818 of 2017 .................................................................... Dated this the 19[th] day of October, 2017.** ## **O R D E R** The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in CC No.2145/2012 on the file of the Court of Judicial First Class Magistrate-I, Kochi, instituted on the basis of a complaint filed by the first respondent herein. Ext.P1 dishonoured cheque dated 19.5.2012 is for Rs.1,62,000/-. The trial court as per the impugned judgment rendered on 23.2.2015 has convicted the petitioner for the aforesaid offence and has sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,62,000/- in default to undergo simple imprisonment for a further period of two months. The fine amount, if so realised, has been directed to be disbursed as compensation to the complainant under Section 357(1)(b) of the Code of Criminal Procedure. Aggrieved thereby, the petitioner has preferred criminal appeal No.132/2015 before the Appellate Court concerned (Court of Addl. Sessions Judge-VII, Ernakulam). The Appellate Court has as per the impugned judgment rendered on 5.4.2017 has confirmed the impugned conviction, but has set aside the substantive sentence of simple imprisonment and has ordered that the petitioner will pay fine of Rs1,72,000/-, in default thereof to undergo simple imprisonment for a Crl.RP 818/17 -2- period of three months and that the fine amount, if so realised, shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.PC. It is challenging these verdicts of the courts below that the petitioner (accused) has preferred the instant revision petition. 2. This revision petition has been admitted by this Court on 12.7.2017 and issued notice to R-1 (complainant) by speed post returnable in two weeks. This Court has also granted an interim order on Crl.MA No.3628/2017 in this case, deferring all further coercive steps for execution of the impugned sentence. 3. Heard Sri.P.Chandrasekhar, learned Advocate, instructed by Smt.Sandhya R.Nair, learned counsel appearing for the petitioner (accused), Smt.K.A. Angel Treena, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Paletty, learned Prosecutor appearing for R-2 (State). 4. The brief of the case of the complainant is to the effect that the accused had purchased building materials from the complainant, who is supplying such materials, and that the outstanding amounts in that transaction owned by the accused to the complainant at the relevant time was Rs.1,62,000/- and in discharge of the said liability, the accused had issued Ext.P1 cheque dated 19.5.2012 for Rs.1,62,000/- drawn from his account in favour of the complainant. The cheque when presented, Crl.RP 818/17 -3- resulted in dishonour on the ground of insufficiency of funds as per Exts.P2 and P3 dishonour memos dated 30.5.2012 and 31.5.2012, respectively, and thereupon the complainant has preferred Ext.P4 statutory demand notice under Section 138 proviso (b) of the NI Act calling upon the accused to pay off the amount covered by the said cheque within 15 days, and that the said notice sent by registered post was duly served on the accused as per Ext.P5 postal receipt and Ext.P6 acknowledgment card etc.. Thereupon, the complainant after adhering to the requisite formalities, has instituted the present complaint, which resulted in trial. During the trial, the complainant was examined as PW1 and marked Exts.P1 to P7(a) documents. The defence has not adduced any oral or documentary evidence. 5. PW1 has broadly deposed in tune with the contents of his complaint that he was engaged in the business of supplying building materials and that there were transactions in that regard between the parties, and that the total outstanding amount owed by the accused to the complainant in respect of the building materials purchased by the accused from the complainant, at the relevant time, came to Rs.1,62,000/and that in discharge of the said liability, the accused had executed and issued the instant cheque for the said amount and the cheque resulted in disbonour etc. The main defence taken up by the accused during the Crl.RP 818/17 -4- cross examination of PW1 was to the effect that a blank signed cheque was handed over by the accused to the complainant as the accused was often purchasing building materials from the complainant on credit basis and that the said cheque has been misused, etc. which resulted in the present complaint, and that the accused had never voluntarily executed and issued the aforesaid cheque for Rs.1,62,000/- and that the outstanding balance owned by the accused to the complainant was only Rs.1,20,000/-. It is also contended that Ext.P4 statutory demand notice has not been served on the accused in his correct address and that it has been received by a person who has no connection with the accused and that therefore, the complaint should fail on the additional ground that statutory demand notice has not been issued in the instant case. 6. In view of the specific defence case taken up by the accused that a blank signed cheque was issued by him and the same was misused, etc., it can be seen that there is no serious dispute by the accused that the signature of the cheque pertains to him and that the cheque has been drawn from his account. Therefore, going by the legal principles, which are well settled, as in **T.Vasanthakumar v. Vijayakumari,** reported in (2015) 8 SCC 378, and in **Rangappa v. Sri Mohan** , reported in (2010) 11 SCC 441, etc., the complainant could draw the benefit of the statutory presumption under Sections 118 (a) and Crl.RP 818/17 -5- 139 of the NI Act. In the above facts and circumstances of the case, the only issue that needs to be considered is as to whether the accused has properly rebutted the said statutory presumption. Yet another aspect to be considered is on the issuance of the statutory demand notice. 7. Both the courts below have found that PW1 has broadly deposed in a credible and believable manner. The courts below also found that Ext.P7 is account book for the transactions of the complainant and Ext.P7(a) is the relevant page (page 145) of Ext.P7 account book which shows transactions between the complainant and the accused. It is true that Ext.P7 series of documents were not produced along with the complaint and that it was produced only subsequently before the trial court. But both the courts below found that a perusal of Ext.P7 account book would show that it cannot be said to be a manipulated or created document. The documents would show that the entries therein have not been written in a sophisticated and proper manner. Ext.P7(a) would show that all the date entries have not been made in a sequential order. For example, after the entry for 17.10.2011, there is another entry for the previous date, i.e. 16.10.2011, and thereafter there is another entry for 17.10.2011 etc. The complainant does not appear to be a highly educated person and the courts below have found that Exts.P7 and P7(a) appear to have been maintained by Crl.RP 818/17 -6- him in the ordinary course of the conduct of his business. Whatever materials were purchased on credit by the accused and the dates of the transactions etc. are entered in Ext.P7(a). The transactions between the parties from 24.9.2011 to 23.2.2012 have been shown therein. The total amount purchased on credit by the accused from the complainant for the period from 24.9.2011 to 3.1.2012 is shown as Rs.3,09,550/-. Thereafter, the complainant has shown that an amount of Rs.1,15,000/has been paid by the accused and that the net amount after the said payment comes to Rs.1,94,550/- (viz. Rs.3,09,550-Rs.1,15,000 = Rs.1,94,550/-). After that, yet another payment of Rs.50,000/- is admitted by the complainant, and so the net amount due comes to Rs.1,44,550/- (viz. Rs.1,94,550/- - Rs.50,000/- = Rs.1,44,550/-). Thereafter, it is endorsed thereunder that the accused has purchased granites for a value of Rs.19,800/-. Thus, the total net amount due shown as per Ext.P7(a) comes to Rs.1,64,350/-, whereas the cheque amount is Rs.1,62,000/-, which is lower than the amount shown in Ext.P7(a). One important aspect of the facts of this case is that the accused has admitted that there were transactions between the parties and that the outstanding balance owed by him to the complainant is Rs.1,20,000/- at the relevant time. Therefore, the transactions and the substantial portion of the liability are indeed admitted by the accused, Crl.RP 818/17 -7- whereas the complainant would insist that the liability owed at the time of issuance of cheque is Rs.1,62,000/-, and he seeks to reinforce it on the basis of Exts.P7 and P7(a). Ext.P7 series of documents have been found to be reliable by both the courts below. The trial court has measured the evidence of the parties as well as the demeanour of the complainant, who is a witness, and it is on the basis of such well considered evaluation that the trial court has come to the considered conclusion that the version projected by the complainant is believable and credible. Therefore, in these circumstances, if the accused wanted to rebut the correctness of the aforesaid liability figure, then some credible evidentiary aspect should have come out in evidence. It is not as if an accused in Section 138 offence should necessarily adduce independent defence evidence. Going by the well settled legal principles, the accused has a liberty to place reliance on the contradictions and other materials that have emerged in the evidence of PW1 based on cross examination and other attendant circumstances. If the accused is confident that he can demolish the statutory presumptions on the basis of such circumstances, which has emerged solely from the evidence of the prosecution and the other attending circumstances, then certainly the accused is entitled to do so. But the onus is certainly on the accused to convincingly and cogently establish before the criminal court that he Crl.RP 818/17 -8- could successfully rebut the statutory presumption. Merely because he has put forward a defence suggestion, that will not absolve his onus, and such a defence suggestion, should be fortified on the basis of credible evidentiary materials and circumstances which have emerged in the evidence. In the instant case, both the courts below have found that no material evidence has been brought in even to remotely sustain the specific defence suggestion that the liability owned at the relevant time is only Rs.1,20,000/- and not the figure shown in the cheque, whereas the complainant had produced documentary evidence to show that the liability at the relevant time is slightly more than the cheque amount. It is in these circumstances that both the courts below have found that the evidence of PW1 is credible and believable, whereas the defence of the accused has remained only in the realm of suggestion as he could not fortify the tenability and basis of such a defence suggestion. In the light of these aspects, the courts below have found that the accused is liable to be convicted for the offence punishable under Section 138 of the NI Act. 8. Coming to the specific contention raised by the accused that Ext.P4 statutory demand notice was not served on his correct address etc., the following aspects are relevant. Ext.P4 notice would show that the complainant has shown the previous address and the present address of the accused therein. The said address is as follows:- Crl.RP 818/17 -9- “Shaji P.K., S/o.Krishnan, Pongathara (H), Pallathakulangara, Ayyampilly P.O., Kuzhupilly - 682 501, Now residing at Vatheriparambil (H), Pallathakulangara, Ayyampilly P.O., Kuzhupilly - 682 501.” Exts.P5 and P6 would show that the said notice has been duly served on the accused. The accused would contend that he had never received Ext.P4 notice and that the person who had signed in Ext.P6 acknowledgment card is someone who is not in any manner connected with the accused etc. However, to a specific question paused to the learned Advocate appearing for the revision petitioner (accused) as to whether any specific challenge was raised during the cross examination of PW1 regarding the aspects borne out by Ext.P4 demand notice, Ext.P5 postal card and Ext.P6 acknowledgment card etc., the learned Advocate for the petitioner (accused) has fairly submitted that no such challenge has been specifically put forward to the complainant, when he was cross examined by the defence. The trial court has also held that from Ext.P5 postal receipt, it is seen that the registered notice has been sent to the address as stated in the present residential address of the accused and that the same has been seen received by some person, who signed in the name of 'Anitha' and that the accused was arrested and produced before the court and on going through the warrant issued by the court, the Crl.RP 818/17 -10- address is seen stated to be similar to the address given in the complaint and the address given in the vakkalath of the accused, and that the warrant and the vakkalath are materials before the trial court which can be considered in evidence, though the same are not marked in evidence, and that no evidence has been brought in before the court to show that the accused was having a different address at the relevant time. It is also not in dispute that the accused has not brought in any evidence whatsoever to show that he was having an address different from the one as shown in the said notice and other personal papers. No attempt has been made to adduce the evidence from the Postal authorities concerned on the issue of service of notice etc. No challenge has been made by the accused during the cross examination of PW1 regarding the evidence given by PW1 about Exts.P4 to P6. In these circumstances, the aforesaid contention of the accused is only to be over ruled. The Apex Court in the Three Bench decision in **C.C. Alavi Haji v. Palapetty Muhammed &** **Anr.,** reported in (2007) 6 SCC 555, has held that when a registered demand notice is shown to have been sent in the correct address of the accused, then such a notice under Section 138 proviso (b) is only to be deemed to have been served by virtue of the presumptions mandated under Section 27 of the General Clauses Act. For all these reasons, the courts below cannot be blamed for having taken the view that the Crl.RP 818/17 -11- contention of the accused regarding the alleged non-service of notice is not tenable and sustainable. 9. The aforesaid considered findings of facts rendered by the courts below cannot be said to be, in any manner, vitiated by gross perversity or illegality. Therefore, this Court is not in a position to interfere with the considered findings and facts rendered by the courts below by exercise of revisional powers conferred on this Court. 10. As regards the sentence, it is seen that substantive sentence of simple imprisonment for one year imposed by the trial court has been set aside by the appellate court and the fine amount for compensation has been enhanced by the appellate court from the cheque amount of Rs.1,62,000/- to Rs.1,72,000/-. Unlike majority of cases, this is a case where the accused has admitted liability of Rs.1,20,000/-. Taking into account the facts and circumstances of the case, this Court is inclined to restore the fine amount as imposed by the trial court, which is same as the amount covered by the cheque. Accordingly, it is ordered that in supersession of the orders of the courts below, the petitioner (accucsed) shall stand sentenced to pay a fine of Rs.1,62,000/-, which shall be disbursed as compensation to the complainant under Section 357(1)(b) of the Cr.PC. Learned counsel appearing for the petitioner(accused) would submit that the petitioner has already deposited Rs.30,000/- Crl.RP 818/17 -12- before the trial court in relation to this case, at the stage of appellate consideration, and that in case, if this Court is so inclined to confirm the conviction, then time by eight months may be granted to pay off the balance fine amount. The learned counsel appearing for the first respondent (complainant) would submit that the petitioner is also carrying out contracts of Public Works Department and that his wife is a Bank officer by profession and that time by more than two months should not be granted etc. Taking into account the rival contentions, this Court is inclined to grant time by four months to pay off the amount. Accordingly, the following directions and orders are passed: - i) The impugned conviction imposed on the petitioner (accused) for the offence punishable under Section 138 of the NI Act will stand confirmed. - ii) The default sentence clause of three months' simple imprisonment as ordered by the appellate court is modified and substituted as two months' simple imprisonment as ordered by the trial court. - iii) In supersession of the orders passed by the courts below, the petitioner (accused) is ordered to pay the fine amount of Rs.1,62,000/- (cheque amount) within a period of four months. The said amount shall be disbursed as compensation to the complainant in terms of Section 357 (1)(b) of the Cr.PC. In case, if the petitioner has deposited any amount before the trial court in relation to this case, then the said amount shall be forthwith released by the said court to the complainant on a request in that regard is made by that party, and the said amount shall be deducted from the total compensation amount and that the petitioner need to pay only the balance amount in that regard. The petitioner is given four months' time to make payment of the balance amount of fine Crl.RP 818/17 -13- for compensation. - iv) The petitioner shall personally appear before the trial court at 11 a.m. on any day on or before 3.3.2018 to remit the fine amount as indicated hereinabove. On default of the petitioner to pay the fine as above, he will have to suffer simple imprisonment for a period of two months. - v) Until 3.3.2018, all further coercive steps in execution of the impugned sentence against the petitioner (accused) will stand deferred. Registry will forward a copy of this order to the trial court, for necessary information. With these observations and directions, this Criminal Revision Petition will stand finally disposed of. ## **(ALEXANDER THOMAS, JUDGE)** jg