Sobha K.C. v. Reji Thampi C. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 3527 of 2009() -----------------------------AGAINST THE ORDER DATED 18/08/2009 IN CRRP.156 /2008 & IN CRA.784/2008 of SESSIONS COURT, TRIVANDRUM CC.552/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT VII, TRIVANDRUM .................... REVN. PETITIONER: REVN. PETITIONER ------------------------------------- SOBHA K.C., TC-8/1627, BN-37, PONGUMOODU, THIRUVANANTHAPURAM. BY ADV. SMT.SHOBHA K.C.(COMPLAINANT-IN-PERSON) RESPONDENTS: RESPONDENT/APPELLANT/ACCUSED. -------------------------------------------- 1. REJI THAMPI C., C.L.COTTAGE, MALAYAM,THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI SOORAJ T. ELENJICKAL. R2 BY PUBLIC PROSECUTOR SRI V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2011, ALONG WITH CRRP NO. 3865 OF 2009, THE COURT ON 30.6.2011, PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------------Crl.R.P. No. 3527 & 3865 of 2009 ---------------------------------------------------** Dated the 30th Day of June, 2011 ## **ORDER** As the parties are same, the facts and circumstances involved are also same, particularly, both the Crl.R.Ps are arising out of the same judgment of the courts below, these Crl.R.Ps are heard together and being disposed of by this common order. 2. Crl.R.P.No.3527 of 2009 is filed by the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act on the ground of inadequacy of sentence imposed against the accused in spite of the fact that the trial court imposed a sentence of 6 months simple imprisonment and to pay a fine of Rs.3,25,000/and also fixed default sentence of 4 months simple imprisonment. Whereas, Crl.R.P.No.3865 of 209 is filed at the instance of the accused in the very same case challenging his conviction and sentence imposed by the trial court as well as by the appellate court. 3. Crl.R.P. No.3527 of 2009 is filed by the complainant CRL.R.P 3527 & 3865/2009 **-:2:-** as indicated earlier and she is the first respondent in Crl.R.P.No.3865/2009 filed by the accused. In both the cases, the complainant appeared in person. The accused preferred Crl.R.P No.3865/2009 through Advocate Sri Sooraj T.Elenjickal and the accused being the Ist respondent in Crl.R.P.No.3527/2009 represented by the same counsel. Thus, I have heard Smt. Sobha K.C. party in person, who is the complainant and Advocate Sri Sooraj T.Elenjicakl, counsel for the accused. Hereinafter, the parties are referred, for short as the 'complainant' and 'accused' only. 4. The case of the complainant is that, on 9.8.2006 the accused borrowed a sum of Rs.3,00,000/-(Rs. three lakhs only) from the complainant, for his business purpose, with the promise that the same will be repaid by depositing Rs.3,00,000/- in the IDBI bank before December 2006. It is the further case of the complainant that on the date of borrowal of the amount, i.e., on 9.8.2006, the accused issued a post dated cheque bearing date as 1.12.2006 drawn on IDBI bank. According to the CRL.R.P 3527 & 3865/2009 **-:3:-** complainant, when the above cheque presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by her. With the said allegation, the complainant approached the court of Judicial First Class Magistrate-VII. Thiruvananthapuram by filing a formal complaint upon which cognizance was taken for the offence under Section 138 of the N.I.Act and instituted C.C.No.552/2007. During the course of trial, the complainant herself was examined as PW1 and Exts.P1 to P6 documents were produced. From the side of the defence, one Swathanthra Kumar A was examined as DW1 but no documents is produced. On conviction, the trial court sentenced the accused to undergo simple imprisonment for a period of six months and also sentenced him to pay a fine of Rs.3,25,000/-. There was also a direction that on realisation of the fine amount, the same shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. The default sentence is CRL.R.P 3527 & 3865/2009 **-:4:-** fixed as simple imprisonment for a period of 4 months. 5. Challenging the above conviction and sentence, the accused preferred an appeal, i.e. Crl.No.784/2008 before the Sessions Court, Thiruvananthapuram. Dissatisfied with the sentence imposed on the accused by the courts below, the complainant had preferred a Revision Petition as Crl.R.P.No.156 of 2008 before the very same court. The learned Sessions Judge, by a common judgment dated 18.8.2009, in Crl.A.No.784/2008 & Crl.R.P.No.156/2008, allowed the appeal in part and dismissed the Crl.R.P. Thus, while confirming the conviction imposed on the accused by the trial court, the appellate court has also confirmed the sentence of fine and the direction to pay compensation under section 357(1)(b) on realisation of the fine amount to the complainant, but the substantive sentence of six months and the default sentence are set aside and modified and, accordingly, the substantive sentence is reduced into imprisonment till rising of the court but the default sentence is enhanced to simple imprisonment for a period of six months. It is the CRL.R.P 3527 & 3865/2009 **-:5:-** above judgments of the courts below are challenged in this two Crl.R.Ps, one at the instance of the accused against the conviction and sentence, and the other by the complainant against the inadequacy of sentence. 6. Smt.Sobha K.C., the complainant, vehemently submitted that though both the trial court as well as the appellate court has found that the accused is guilty under section 138 of the N.I.Act, the sentence imposed is not proportionate to the offence committed by the accused and the complainant is not adequately compensated as per the judgments of the courts below. It is also the submission of the complainant that the reduction of term of imprisonment at the instance of the appellate court is opposed to the legislative intention. According to the complainant, even though the maximum substantive sentence is fixed as two years, the appellate court has fixed the substantive sentence only till the rising of the court in spite of the fact that the trial court has imposed sentence of 6 months. It is the submission of the complainant that as per section 138 of the N.I.Act, the CRL.R.P 3527 & 3865/2009 **-:6:-** sentence prescribed is a deterrent measure but the courts below ignored the above legislative intention and also failed to take into account the time lag between the drawing of the cheque and issuing the direction, awarding compensation. According to the complainant, the compensation awarded by the courts below are insufficient and according to her, 18% interest ought to have been ordered till the realisation of the cheque amount and also cost has to be ordered. According to the complainant, the Sessions Judge ought to have imposed rigorous imprisonment in default of payment of fine amount so as to ensure timely payment of the compensation. It is also argued by the complainant that the learned Sessions Judge ought to have made provision in the judgment to realise the compensation amount ordered under section 357(1) Cr.P.C in terms of Section 421 Cr.P.C. It is the further submission of the complainant that the trial court as well as the appellate court has concurrently found the guilt of the accused and the accused has not made out any grounds to interfere with such concurrent findings. According to the CRL.R.P 3527 & 3865/2009 **-:7:-** complainant, her case has been proved by adducing adequate and acceptable evidence and materials. According to the complainant, in the present case, besides Ext.P1 cheque, and other common documents, in a prosecution for the offence under section 138 of the NI Act, the complainant has also produced Ext.P2 letter dated 9.8.2006 of the accused acknowledging the receipt of Rs.3 lakhs on 9.8.2006 and offering 18% interest and therefore, the execution of Ext.P1 cheque and the consideration etc., are proved by contemporaneous documents and therefore, there is no scope for any interference against the order of conviction recorded by the courts below. Thus according to the complainant, the Crl.R.P filed by the accused is to be dismissed and the Crl.R.P. filed by her is to be allowed and the punishment and the compensation ordered by the appellate court has to be revised and enhanced. 7. Mr. Sooraj T. Elenjickal, the learned counsel appearing for the accused, stoutly opposing the contentions advanced by the complainant, submitted that the findings of the trial court as well as the appellate court CRL.R.P 3527 & 3865/2009 **-:8:-** are absolutely incorrect and illegal and also improper. The learned Counsel submitted that the complainant has miserably failed to make out a consistent case regarding the transaction and she had suppressed the material facts in the complaint, especially the fact connected with the real estate business in which the complainant as well as the accused are involved. According to the learned Counsel, the accused has succeeded in establishing a probable case as to how the cheque in question reached in the hands of the complainant, and therefore, the trial court as well as the appellate court ought to have held that the complainant has not established the case as alleged in the complaint against the accused. According to the learned Counsel, the trial court as well as the appellate court has miserably failed to appreciate the evidence properly in arriving at a conclusion as to whether the offence under section 138 of the N.I. Act is made out against the accused based upon the allegation that contained in the complaint as well as the evidence on record. In the alternative, the learned counsel vehemently submitted CRL.R.P 3527 & 3865/2009 ## **-:9:-** that the appellate court while exercising its discretion, reduced the substantive sentence but at the same time, so as to ensure the payment of the fine amount, enhanced the default sentence and as such no interference is warranted with respect to the sentence. 8. I have carefully considered the arguments advanced by Smt. Sobha K.C, the complainant and the arguments of Sri Sooraj T.Elenjicakal, learned counsel, appearing for the accused and I have also perused the judgments of the courts below and the evidence and materials on record. 9. The case of the complainant is that the accused borrowed a sum of Rs.3 lakhs on 9.8.2006, on which date itself the accused issued Ext.P1 cheque which is a post dated one, cheque bearing the date 1.12.2006. When the complainant has filed a proof affidavit, in lieu of chief examination, in which she had set forth the transaction which led to the issue of Ext.P1 cheque. When she was examined, she had deposed in terms of her claim in the complaint. As I indicated earlier, besides the documents CRL.R.P 3527 & 3865/2009 **-:10:-** like dishonour memo (Ext.P3), demand notice (Ext.P4) and receipt (Ext.P6) , in the present case, the complainant has also produced Ext.P2 and Ext.P5. Ext.P2 is a letter dated 9.8.2006 which, according to the complainant, issued by the accused at the time of receipt of the amount of Rs.3 lakhs and according to her, the accused issued Ext.P1 cheque. During cross examination of the complainant, she has stated that she had prior acquaintance with the accused and out of that acquaintance, the accused demanded the loan and on the basis of the said relationship, the complainant parted with that amount in favour of the accused. The above transaction claimed by the complainant, is supported by her own oral deposition as well as the documents including Ext.P2 acknowledgment of the accused which is a contemporary document. It is pertinent to note that though the complainant was subjected to cross examination, nothing is brought on record to discredit her version regarding the transaction. 10. It is true, when she was cross examined, she had deposed some incidents of real estate business with the CRL.R.P 3527 & 3865/2009 ## **-:11:-** accused, but nothing is brought on record to show that the cheque in question was issued connected with the transaction related to real estate business as claimed by the accused in support of his defence. According to the accused, the complainant was introduced to him by DW1 in connection with the real estate transaction and Ext.P1 cheque was obtained by the complainant from the accused towards commission of sale in advance connected with the deal of 35 cents near to Medical College, Thiruvnanthapruam. According to the accused, the said transaction was not materialised but the complainant did not return the cheque. Thus, according to the accused, the said cheque is misused by the complainant to file the present complaint against the accused. 11. The learned counsel, in order to substantiate the above defence, took me through the evidence of PW1 that elicited during her cross examination and the deposition of DW1. As I indicated earlier, though PW1 had admitted some facts connected with business deal with the accused, there is nothing on record to show that she had CRL.R.P 3527 & 3865/2009 **-:12:-** obtained the cheque in question from the accused connected with any such transaction as claimed by the accused or DW1. Though DW1 was also examined, there is no material or evidence to show that the cheque in question is the one which handed over by the accused to the complainant connected with any such transaction, connected with real estate business. Absolutely, no contemporary evidence or reliable materials are produced from the side of the defence with respect to the deal of 35 cents of property near to the Medical College at Thiruvananthapuram. Except the interested version of the defence and DW1, there is no evidence in this regard. On the other hand, the evidence of PW1 squarely established the transaction claimed by her with the accused which led to the issuance of Ext.P1 cheque. The said claim and evidence of PW1 is fully supported by contemporary documents like Ext.P2 letter of acknowledgment issued by the accused himself. There is no serious and effective challenge against Ext.P2, except a suggestion to the effect that,: “ Ext.P2 ര�ഖ വ��ജമ�യ� തയ�റ�ക�യതര�.”To the above CRL.R.P 3527 & 3865/2009 **-:13:-** suggestive question, PW1 answered that :.''ആയത� റജ� സ�ന� കയക�ത�ല എഴ�ത�തനത�ണ�.”The above answer of PW1 is not challenged in further cross examination. There is no question against the hand writing contained in Ext.P2 or the signature therein. In Ext.P2, there is a recital of the number of Ext.P1 cheque and also the receipt of Rs.3lakhs from the daughter of the complainant. In the absence of any serious dispute against Ext.P2, or the contents of Ext.P2 are not disproved, the trial court as well as the appellate court are perfectly correct and legal in holding that Ext.P1 cheque was issued by the accused in favour of the complainant towards the discharge of the liability due to the complainant that arose out of borrowal of money by the accused from the complainant on 9.8.2006. 12. According to me, even in the absence of Ext.P2 acknowledgment of the accused, the other documents and the deposition of PW1 are sufficient to prove the transaction claimed by the complainant and such transaction is further established by concrete evidence namely, Ext.P2 contemporary evidence and therefore, CRL.R.P 3527 & 3865/2009 **-:14:-** certainly, the complainant is entitled to get presumption under section 138 of the Act. But the accused miserably failed to rebut the above presumption at least by making out a probable case. The mere admission from the part of the complainant regarding the joint venture in real estate business is not sufficient to hold that Ext.P1 cheque is issued connected with such transaction, especially when Ext.P2 acknowledgment proved otherwise against the accused and in favour of the complainant. Therefore I find no reason to interfere with the concurrent findings and the conviction recorded by the trial court as well as the appellate court and, accordingly, the conviction of the accused under section 138 of the N.I.Act recorded by the trial court as well as the appellate court is confirmed. 13. Now the question arises for consideration of this court is whether any interference is warranted with respect to the sentence and the compensation fixed by the court below. 14. In the light of the findings of the trial court as well as the appellate court which approved by this Court, it CRL.R.P 3527 & 3865/2009 **-:15:-** is proved that an amount of Rs.3 lakhs was borrowed by the accused from the complainant on 9.8.2006. But there is no claim or proof from the part of the accused that the said liability was cleared either completely or partially. The Apex court in the 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. Considering the above settled legal position, I am of the view that the substantial sentence modified and fixed by the appellate court does not warrant any interference but it is my considered view that the complainant is not adequately compensated. 15. On a reading of Section 138 of the N.I.Act, it can be seen that the court can impose a sentence of fine and the fine amount can be fixed as equal to double of the cheque amount. If that be so, the maximum sentence of fine that can be imposed in the present case will come to Rs.6 lakhs. But in the present case, the appellate court has fixed the fine amount only as Rs.3,25,000/- which according CRL.R.P 3527 & 3865/2009 **-:16:-** to me, is not sufficient to meet the ends of justice, especially, when the amount of Rs.3 lakhs was borrowed from the complainant as early as on 9.8.2006. Therefore, the “interest” that envisaged by the Apex Court in the decision cited supra has to be saved in the present case by making appropriate provisions in the sentence of fine. Thus according to me, the fine amount fixed by the appellate court requires modification and the same can be enhanced and fixed as **Rs.3,80,000/-** which will be sufficient to meet the ends of justice. In this juncture it is also relevant to state that , considering the object sought to be achieved as per the amendment brought to the Negotiable Instruments Act and introduction of Chapter, according to me, it is the duty of the court to see that on conviction, the complainant shall be compensated adequately and the payment of the same should be ensured. Therefore adequate default sentence must be imposed so as to guarantee the payment of compensation fixed by the court. But according to me, the default sentence fixed by the appellate court is not sufficient to CRL.R.P 3527 & 3865/2009 ## **-:17:-** ## achieve the above object. In the result, both the Crl.R.Ps are disposed of confirming the conviction of the accused under section 138 of the NI Act as recorded by the courts below. Accordingly, the sentence of imprisonment as modified and fixed by the appellate court is also confirmed. But the sentence of fine ordered by the appellate court is modified and enhanced to the tune of Rs.3,80,000/- (Rs.Three lakhs and eighty thousand only) and accordingly, the accused is sentenced to pay a fine of Rs.3,80,000/-, within 45 days from today and, in default, he is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on **16[th] August, 2011** to serve the sentence of imprisonment as ordered by the appellate court on which date he is directed to deposit the fine amount as fixed by this court. Counsel for the revision petitioner/accused submitted that in terms of the order passed by this court on 11.12.2009 in Crl.M.A.No.12237/2009, the accused has CRL.R.P 3527 & 3865/2009 **-:18:-** already deposited a sum of Rs.75,000/- in the trial court and the said amount may be reduced from the total fine fixed by this court. It is made clear that if the above submission is correct and accordingly, Rs.75,000/- has already been deposited in the trial court and the said amount is retained therein, the petitioner is entitled to get credit of that amount towards the total fine amount fixed by this court and in that case, the petitioner need to deposit only **Rs.3,05,000/-** towards the total fine fixed by this court. On realisation of the entire fine amount, a sum of **Rs.3,75,000/-** (Rs.Three lakhs and seventy five thousand only) shall be given to the complainant as compensation under section 357(1)(b) Cr.P.C and the remaining amount of Rs.5,000/- shall be deposited in the State ex chequer. 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 petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. Execution of any coercive steps pending against the accused shall CRL.R.P 3527 & 3865/2009 ## **-:19:-** be deferred till **16[th] August, 2011** . The Crl Revision Petitions are disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-