SHEMI SHAJI v. SREE GOKULAM CHITS AND FINANCE COMPANY PVT. LTD. & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945** **CRL.REV.PETITION NO. 747 OF 2019 AGAINST THE JUDGMENT DATED 01.12.2018 IN CRL.APPEAL NO.78 OF 2017 OF THE ADDITIONAL SESSIONS COURT-IV, THODUPUZHA AND THE JUDGMENT DATED 10.05.2017 IN S.T.NO.198 OF 2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, THODUPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SHEMI SHAJI, AGED 40 YEARS, W/O.SHAJI, MALAYIL (H), EDAVETTY P.O., THODUPUZHA.** **BY ADVS. M.B.SANDEEP SMT.R.PRIYA SMT.SHERIN VARGHESE SRI.B.SURJITH SMT.K.P.SREEJA SRI.M.J.KIRANKUMAR** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 SREE GOKULAM CHITS AND FINANCE COMPANY PVT.LTD., ARCOT ROAD, KODAMBAKKAM, CHENNAI, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER JOMY M.C., S/O.CHACKO, SENIOR BUSINESS MANAGER, THODUPUZHA BRANCH, THODUPUZHA - 685 584. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R1 BY ADV SRI.MAHESH V RAMAKRISHNAN R2 BY SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 01.11.2023, THE COURT ON 13.11.2023 DELIVERED THE FOLLOWING:** 2 Crl.Rev.Petition No.747 of 2019 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Rev.Petition No.747 of 2019 ----------------------------------------------------------Dated this the 13[th] day of November, 2023** ## **O R D E R** The petitioner is the accused in S.T.No.198 of 2015 on the files of the Judicial Magistrate of the First Class-II, Thodupuzha. The 1st respondent filed a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act), upon which the said case arose. The petitioner was convicted and sentenced. She appealed against, but the Additional Sessions Judge-IV, Thodupuzha confirmed the conviction. The sentence was, however, modified. The sentence now is simple imprisonment till the rising of the court and payment of compensation of Rs.1,14,100/-. The petitioner challenges the said conviction and sentence in this Revision Petition filed under Section 397(1) read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 3 Crl.Rev.Petition No.747 of 2019 2. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the 1st respondent and the learned Public Prosecutor. 3. The 1st respondent is a company, mostly involved in financial transactions. Husband of the petitioner was a subscriber to a chitty at the Thodupuzha Branch of the 1 st respondent. He prized the chitty and received the prize amount. There occurred default in payment of instalments. A notice, Ext.P6 was therefore issued, in consequence of which the petitioner, who is the wife of the subscriber, reached Muthalakodam Branch of the 1st respondent; to which Branch the file relating to the chitty was said to have been transferred, and issued Ext.P7 cheque dated 11.12.2013 for an amount of Rs.1,14,100/-, the amount found due as on that date. The 1st respondent alleging that when the said cheque was presented for encashment it was returned unpaid and despite notice, the petitioner failed to make the payment, instituted the complaint. 4 Crl.Rev.Petition No.747 of 2019 4. At the trial, the defence set up by the petitioner was that a blank signed cheque handed over by her when the husband received the amount of chitty in the year 2007 was misused by the 1st respondent. Her allegation was that the blank cheque was filled by endorsing an amount whimsically. She maintained that Ext.P7 was not supported by consideration and having the debt been barred by the law of limitation, Ext.P7 cheque would not create any legally enforceable debt. Regarding the notice also, she took up a contention that the notice does not satisfy the requirements of Section 142 of the N.I.Act. Yet another contention raised by the petitioner is that interest at the rate of 18% per annum was added by the 1st respondent to the principal and therefore Ext.P7 cannot be used for prosecution under Section 138 of the N.I.Act. 5. PW1 is the power of attorney who instituted the complaint. PW2 was the Manager of Muthalakodam Branch of the 1st respondent-company and PW3 was the custodian of the computer, from which the data for Ext. P4 was retrieved. PW1, 5 Crl.Rev.Petition No.747 of 2019 representing the 1st respondent and in exercise of the powers conferred on him as per Ext.P1 power of attorney and the resolution of the Board of Directors of the company dated 03.01.2011, an extract of which is Ext.P2, filed the complaint. PW2 deposed before the court that the petitioner executed Ext.P7 cheque before him. PW3 deposed substantiating that Ext.P4 statement of accounts was retrieved from the computer in his custody. Ext.P8 is the dishonour memo dated 02.01.2014 and Ext.P9 is the intimation memo of even date. Ext.P11 is the notice sent to the petitioner, but returned unclaimed. Ext.P10 is its copy and Ext.P10(a) is the postal receipt dated 28.01.2014 for issuance of Ext.P11. 6. The trial court, after considering the aforesaid evidence and also the documents pertaining to the chitty transaction, concluded that the petitioner issued Ext.P7 cheque after due execution and it was supported by sufficient consideration. Further, holding that the prosecution could prove that the cheque was returned for want of sufficient funds in the account of the petitioner and gave her a statutory 6 Crl.Rev.Petition No.747 of 2019 notice, found the petitioner guilty of the offence under Section 138 of the N.I.Act. The Appellate Court, after analysing the evidence in detail, confirmed the findings of the trial court. It is the said concurrent findings, which are now assailed by the petitioner in the Revision Petition. 7. The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. [See: **State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015) 3 SCC 123; Kishan Rao v. Shankargouda (2018) 8 SCC 165].** 7 Crl.Rev.Petition No.747 of 2019 8. The two-fold contentions of the petitioner regarding Ext.P7 cheque are that its due execution was not proved and that it was not supported by consideration. The case of the 1st respondent is that for the payment of the amount due in the chitty transaction, the husband of the petitioner had with the 1st respondent, she had issued Ext.P7. While PW1 deposed regarding the chitty transaction and the amount due, PW2 testified that Ext.P7 was executed by the petitioner before him at Muthalakodam Branch of the 1st respondent. It is not in dispute that Ext.P7 was a cheque issued in the account of the petitioner and the signature in it was put by her. Her contention is that it was given as security at the time when her husband received the cheque amount in the year 2007. Ext.P7 is dated 11.12.2013. Version of PW1 is that when Ext.P6 notice was issued demanding payment of the amount due in the chitty transaction, the petitioner went to Muthalakodam branch of the 1st respondent and issued the cheque after convincing herself about the actual amount due by verification of the account. When both the courts below 8 Crl.Rev.Petition No.747 of 2019 considered the evidence and found that there is no reason to disbelieve the said witness, such a finding can be interfered with only if there is sufficient reason to show the same is perverse. Except the suggestion, the petitioner did not adduce any evidence to show that the cheque was in fact issued in 2007 in blank. The contention of the petitioner that while the chitty transaction was in the Thodupuzha Branch, the claim that Ext.P7 cheque was issued at Muthalakodam Branch would improbabilise the prosecution case, cannot be accepted in the light of the cogent evidence adduced by the 1st respondent to prove its claim. Therefore, the finding of the courts below that Ext.P7 was a duly executed cheque is not liable to be interfered with in this Revision Petition. 9. The learned counsel for the petitioner submits that as evident from Ext.P4 statement of accounts, interest at the rate of 18% was charged by the 1st respondent and when the amount covered by Ext.P7 includes interest at such a rate, the same is not a legally enforceable debt. In that regard, the learned counsel places reliance on **Basheer M.H. v. Wheels** 9 Crl.Rev.Petition No.747 of 2019 **Auto Finance, Kaloor and another [2017 (3) KHC 3]** . That was a case where the amount under the cheque was admittedly due against a loan transaction. The interest evidently charged was 18% per annum and penal interest of 3% per month. In the absence of proof about any agreement, it was held that charging of interest at the rate of 18% even was in violation of Section 7(1) of the Kerala Money Lenders Act, 1958 and also the provisions of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012 renders the cheque unusable in a prosecution under Section 138 of the N.I.Act. The said proposition is not applicable to this case since the transaction is covered by Ext.P12 agreement. It is trite that a creditor cannot charge interest at a rate which is impermissible in law _albeit_ , there is agreement. The said question does not require consideration in this case. 10. The learned counsel for the petitioner further contended that the Power of Attorney produced by the 1st respondent and the copy of the resolution empowering initiation of prosecution were not admissible documents and 10 Crl.Rev.Petition No.747 of 2019 therefore there was no proper complaint. An extract of the resolution if duly attested, can be accepted in evidence and signatures of the Directors, who attended the meeting, are unnecessary in the extract. Similarly, the defect attributed to the power of attorney, Ext.P1, is also untenable. 11. The demand notice was not personally served on the petitioner, but it was returned unclaimed. Since the endorsement of the postal authority that the notice was returned unclaimed, an inference of due service of notice is possible. The prosecution cannot therefore be said to be faulty for want of demand notice. In such circumstances, I am of the view that there is no reason to find the findings of the courts below incorrect, illegal or improper. The revision therefore fails. It is accordingly dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr