Shaju Varghese v. Charles M. Paul and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 Crl.Rev.Pet.No. 2608 of 2007() ------------------------------ CRL.APPEAL NO.806/2006 OF ADDITIONAL SESSIONS COURT, ERNAKULAM IN C.C.NO.161/2003 OF J.F.C.M.I, ERNAKULAM. REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- SHAJU VARGHESE, AGED 36, THEEYATTUSSERIL, MEVELLOOR P.O., THALAYOLAPARAMBU, KOTTAYAM DIST. BY ADV. SRI.MANOJ P.KUNJACHAN RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE ---------------------------------------------- 1. CHARLES M.PAUL, MEENCHIRAPATTU HOUSE, VELIYANADU P.O., ARAKKUNAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.B.GOPAKUMAR FOR R1 PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J** **----------------------** Crl.R.P.No.2608 of 2007 ---------------------------------------Dated this the 22[nd] day of January 2008 ## **O R D E R** This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The petitioner now faces a sentence of imprisonment till rising of court and there is a further direction to pay an amount of Rs.6,00,000/- as compensation and in default to undergo S.I for a period of four months. 2. The cheque is for an amount of Rs.5,00,000/-. It bears the date 26/8/2002. The signature in the cheque is admitted. That the cheque was handed over by the petitioner to another after affixing the signature is also admitted. But the petitioner's contention is that the cheque was not handed over to the complainant for the due discharge of any legally enforcible debt or liability. According to him, it was handed over by him as a signed blank cheque and as security to one Varghese K.Abraham alias Kochumon, a business partner of his. Notice of demand was sent by the complainant. It was returned unclaimed. The Crl.R.P.No.2608/07 2 complainant came to court after observing the statutory time table scrupulously. Consequent to denial of the offence by the petitioner, the complainant examined himself as PW1 and the postman who attempted delivery of the notice as PW2. Ext.P1 to P5 were also marked. The accused did not adduce any defence evidence. It is submitted that Ext.D1 document was marked though it is not shown in the appendix. It is the ration card of the petitioner and that shows that he is Shaju Varghese of Theeyattusseri. 3. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. 4. The petitioner claims to be aggrieved by the impugned order. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner challenges the concurrent judgments on three grounds. 5. First of all, it is contended that the cheque was not Crl.R.P.No.2608/07 3 issued for the due discharge of any legally enforcible debt or liability. It is the contention of the petitioner that the cheque was handed over as security to one Varghese K.Abraham alias Kochumon, his business partner, solely as security and not for the discharge of any legally enforcible debt/liability. We have primarily the oral evidence of PW1, the complainant, to explain the circumstances under which he came into possession of Ext.P1 cheque. His ability to produce Ext.P1 cheque which admittedly is drawn on a cheque leaf issued to the petitioner by his bank to operate his account with the signature of the petitioner admittedly affixed thereon, goes a long way to offer assurance to the court about the evidence of PW1. Notice of demand has not been received or replied to. No defence evidence whatsoever has been adduced on this aspect also. The mere fact that PW2, the postman, stated that he had come to the court in the car of one Kochumon along with the complainant is to slender and insufficient data to throw overboard the evidence of PW1. It must be held that the evidence of PW1 is sufficient to tilt the scales in favour of the complainant and to conclude that there has been proper evidence of execution/drawing of the cheque Ext.P1. Crl.R.P.No.2608/07 4 6. The execution of the cheque, if proved, brings with it a train of presumption under Section 118 and 139 of the Negotiable Instruments Act. It is a rebuttable presumption of fact. The accused need not disprove the case of the complainant nor need he prove his case to the hilt or beyond the shadow of a reasonable doubt. But his case must certainly measure up to the requirement of a case proved by preponderance of possibilities and probabilities as in a civil case. The cross-examination of PW1 and the alleged admission of PW2 do fall significantly short of the mark set by such standard. The challenge on the first ground must in these circumstances fail. 7. It is contended that no proper notice has been issued. The evidence of PW2 clearly shows that Ext.P4 notice was taken by PW2 to the petitioner and that it was not received by him. The returned cover Ext.P5 contains the endorsement by PW2 that though intimation was given, the petitioner had not claimed the notice. Why did the petitioner not claim the notice? The petitioner advances two reasons. According to him, he is Shaju Crl.R.P.No.2608/07 5 Varghese and not Saju Varghese as shown on Ext.P5. He has a further contention that his house name is not Peeyattusseri as shown in Ext.P5; but the correct house name is Theeyattusseri. From this he contends that no presumptions under Section 114 of the Evidence Act or Section 27 of the General Clauses Act can be drawn. For want of a proper notice of demand, the prosecution must fall to the ground, urges the learned counsel for the petitioner impassionately. 8. I must say that I do not find any merit in this contention. Difference between Shaju and Saju and Theeyattusseri and Peeyattusseri is so insignificant, according to me, that such innocuous incongruity in the address cannot justify the non-receipt and the non-claiming of the notice by the petitioner as indicated in Ext.P5. The evidence of PW2 shows clearly that notwithstanding the alleged innocuous inaccuracies he, a person charged with the responsibility of service of notice, was very clear in his mind that the notice has to be taken to the petitioner, which he did. The attempt which was made to make a mountain out of a mole hill from the innocuous and innocent incongruities cannot obviously succeed. It will not be inapposite Crl.R.P.No.2608/07 6 in this context to refer to the observations of the three judge Bench of the Supreme Court. In Alavi Haji v. Muhammed [2007(3) KLT 77 SC], in paragraph 17, following observations are made: “It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under S.27 of the G.C.Act and S.114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the - giving of notice - in the context of Clause (b) of the proviso was the same as the - receipt of notice - a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of S.138 of the Act.” 8. I note that inspite of service of the summons in this case on the petitioner, the petitioner has not chosen to pay the Crl.R.P.No.2608/07 7 amount and avoid culpable liability though the proceedings have been pending at various tiers from 2002 onwards. The petitioner, I hold, is not hence entitled to take advantage of the alleged inadequacy in the details shown on Ext.P5. 9. Thirdly and lastly, the learned counsel for the petitioner contends that the compensation amount directed to be paid is excessive. He prays that a lenient view may be taken and the quantum of compensation may be suitably reduced. Default sentence may also be reduced suitably to confirm to Section 30 of the Cr.P.C, submits the learned counsel for the petitioner. 10. I have heard the learned counsel for the complainant also. I find merit in the contention that the quantum of compensation directed to be paid is excessive. The cheque is for an amount of Rs.5,00,000/- The complainant has been compelled to fight three rounds of unnecessary legal battle by now. He certainly deserves to be compensated adequately. While fixing the compensation amount, it must be very easy to conclude that the complainant has suffered loss of Rs.5,00,000/- and also incurred expenditure for conduct of the case, not to speak of the loss by way of interest. Taking all the relevant circumstances into Crl.R.P.No.2608/07 8 account, I am satisfied that a direction to pay an amount of Rs.5,25,000/- as compensation shall, in the facts and circumstances of this case, be eminently reasonable and just. The cheque is for Rs.5,00,000/-. I have already come to the conclusion that the cheque is issued for the due discharge of a legally enforcible debt/liability. There is nothing to assume that the accused who issued such a cheque does not have the financial capacity to discharge that liability. No separate enquiry/evidence need to be adduced on the question of compensation or the ability of the accused to pay such amount. The available materials will have to be considered and enquiry must be conducted on the basis of the available materials. Applying my mind to the situation, I find that a direction to pay an amount of Rs.5,25,000/as compensation would be absolutely just and fair, in the facts and circumstances of this case. The default sentence must also confirm to the mandate of Section 30 of the Cr.P.C. At the relevant time, the maximum substantive sentence was only imprisonment for a period of one year. Consequently I hold that the default sentence cannot exceed three months notwithstanding the fact that the default sentence Crl.R.P.No.2608/07 9 was imposed not for default payment of fine; but for default of payment of compensation only which is to be reckoned as fine for the purpose of recovery. The default sentence, it is by now trite, can be imposed to enforce payment of such compensation as declared in Harikrishnan and State of Haryana v. Sukhbir Singh & others [AIR 1988 SC 2127] and Suganthi Suresh Kumar v. Jagdeeshan [AIR 2002 SC 681]. 7. In the result: - a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the - petitioner under Section 138 of the N.I.Act are upheld. c) The sentence imposed is also upheld. But the direction for payment of compensation and the default sentence are modified. The petitioner shall pay an amount of Rs.5,25,000/(Rupees five lakhs twenty five thousand only) as compensation under Section 357(3) Cr.P.C and in default, to undergo S.I for a period of three months. If realised, the entire amount shall be released to the complainant as compensation. 8. The petitioner shall have time till 31/03/2008 to raise and pay the amount and avoid the default sentence. The Crl.R.P.No.2608/07 10 impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/04/2008 for execution of the sentence. If the petitioner does not so appear before the learned Magistrate on or before 01/04/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. **(R.BASANT, JUDGE)** jsr Crl.R.P.No.2608/07 11 Crl.R.P.No.2608/07 12 ## **R.BASANT, J** Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17[th] DAY OF JANUARY 2008