Sukumaran Nadar v. Velayudhan Chettiar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2014/2ND MAGHA, 1935** ## **Crl.Rev.Pet.No. 1715 of 2003** **---------------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 157/1998 of ADDITIONAL SESSIONS COURT (FAST TRACK COURT-1), THIRUVANANTHAPURAM AGAINST THE ORDER IN CC 247/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEYYATTINKARA** **------------** ## **PETITIONER(S)/APPELLANT/ACCUSED:** **-------------------------------------------------------** **SUKUMARAN NADAR, SON OF PADMANABHAN, SUKUMARA VILASAM BUNGLOW, THALAYAL DESOM, ATHIYANNOOR VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.SASTHAMANGALAM .G.GOPALAKRISHNAN SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------------------------------------------------------** **1. VELAYUDHAN CHETTIAR, SON OF SUBHAYYAN CHETTIYAR, VANIGAR THERUVU VARUVILAKATHU VEEDU, ATHIYANNOOR VILLAGE.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.D.SAJEEV R2 BY PUBLIC PROSECUTOR SRI.R.GITHESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** K.RAMAKRISHNAN, J. ---------------------------------------------------------------Crl. R.P. No.1715 of 2003 -----------------------------------------------------------------Dated this the 22nd day of January, 2014 ## O R D E R Accused in C.C.No.247/96 on the file of the Judicial first Class Magistrate Court-III, Neyyattinkara, is the revision petitioner herein. The case was taken on file, on the basis of a private complaint filed by the first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called the ‘Act’). The case of the complainant was that, the accused borrowed a sum of 15,000/- and in discharge of that₹ liability, he had issued Ext.P1 cheque dated 06.12.1995 to the Bank of India, Balaramapuram Branch, in favour of the complainant. The cheque when presented was dishonoured for the reasons, 'funds insufficient' evidenced by Ext.P2 dishonour memo. In spite of issuing Ext.P3 notice, intimating the dishonour and demanding payment of the amount evidenced by Ext.P4 and P5 postal receipt and postal acknowledgment, the revision petitioner had not paid Crl. R.P. No.1715 of 2003 2 the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. 2. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P5 were marked on his side. After closure of the complainants evidence, the revision petitioner was questioned under Section 313 of the code of criminal procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further denied that, he had borrowed any amount and issued any cheque as alleged. He had sent Ext.D1 reply notice. Except producing Ext.D1, he had not adduced any evidence. After considering the evidence on record, the learned magistrate found him guilty under Section 138 of the 'Act' and convicted him thereunder and sentenced him to undergo simple 3 Crl. R.P. No.1715 of 2003 imprisonment for three months and also to pay a fine of ₹ 30,000/-, in default to undergo simple imprisonment for one month. It is further ordered that, the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. 3. Dissatisfied with the order of conviction and sentence passed by the learned magistrate, the revision petitioner filed Criminal appeal No.157/98 before the Sessions court, Thiruvananthapuram, which was made over to Additional Sessions Court (Fast Track-I) for disposal. The learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction passed by the Magistrate, but set aside the fine imposed and converted the same into compensation with default sentence of three months under Section 357(3) of the Code of Criminal Procedure. Dissatisfied with the same, the present revision has been filed by the revision petitioner. Crl. R.P. No.1715 of 2003 4 4. Heard the counsel for the revision petitioner, first respondent and learned Public Prosecutor. The counsel for the revision petitioner submitted that, the evidence of PW1 is not sufficient to come to the conclusion that Ext.P1 cheque was issued in discharge of any legally enforceable debt. The courts below did not properly appreciate the contentions raised in Ext.D1 reply notice, and that was not taken into consideration. The contentions of the revision petitioner in the reply notice, was one of discharge. So that aspect has not been considered. So according to the learned counsel for the revision petitioner, the conviction is unsustainable in law. 5. On the other hand, the learned counsel for the first respondent submitted that, there is no acceptable evidence adduced on the side of the revision petitioner to dislodge the presumption under Section 139 of the Act. So the courts below were perfectly justified in convicting the appellant for the offence alleged. 5 Crl. R.P. No.1715 of 2003 6. The case of the complainant was that, the accused borrowed 15,000/- and in discharge of the liability₹ Ext.P1 cheque was issued. The case of the accused was that he had received only 9,000/- and he paid 10,000/-₹ ₹ and the cheque was given as security, which has been misused. In order to prove the case of the complainant, the complainant himself was examined as PW1. He had categorically stated that, the cheque was issued in discharge of the liability. He had denied the suggestion that the revision petitioner was borrowed only 9,000/- and₹ in fact he paid 10,000/- and thereby, there is no liability₹ subsists as per the cheque. Except the suggestion given, there is no other evidence adduced on the side of the revision petitioner to prove the discharge pleaded by him. So under the circumstances, once the complainant had proved that Ext.P1 cheque was issued by the revision petitioner in discharge of his legally enforceable debt, then unless the burden cast on the accused is discharged, it can 6 Crl. R.P. No.1715 of 2003 be presumed that the cheque was issued in discharge of legally enforceable debt invoking the presumption available under Section 139 of the Act. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that, the revision petitioner had committed the offence punishable under Section 138 of the Act and rightly convicted him. I do not find any reason to interfere with that finding. 7. As regards the sentence is concerned, the counsel for the revision petitioner submitted that, since double the cheque amount has been awarded as compensation, the appellate court was not justified in ordering substantive sentence of three months simple imprisonment. 8. On the other hand, the learned counsel for the first respondent submitted that, there is no illegality committed by the court below in passing the sentence as well. 7 Crl. R.P. No.1715 of 2003 9. Originally the trial court sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay a fine of 30,000/-, in default₹ to undergo simple imprisonment for three months more and further directed to pay the fine amount, if realised, to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. On appeal, the Additional Sessions Judge found that the magistrate has no power to impose fine more than 5,000/-, in view of the decision in₹ **Beena v. Muniyappan 2001(3) KLT 950,** confirmed the substantive sentence of three months simple imprisonment but converted the fine to one of compensation with default sentence under Section 357(3) of the Code of Criminal Procedure. The cheque was issued in the year 1995. Even now the amount has not been discharged. So under the circumstances, the appellate court was perfectly justified in awarding 30,000/- as compensation with default sentence₹ invoking the power under Section 357(3) of the Code of 8 Crl. R.P. No.1715 of 2003 Criminal Procedure. 10. But it is settled law that, Section 138 has been incorporated in the statute, though as a penal provision, with an intention to make the drawer of the cheque to pay the amount to the payee of the cheque. Considering the fact that, the court has awarded double the amount of cheque as compensation. I feel that the substantive sentence of three months imprisonment imposed by the court below appears to be on the higher side and that can be reduced to imprisonment, till rising of the court and that will meet the ends of justice. While confirming the order of compensation passed by the court below, with default sentence of three months simple imprisonment under Section 357(3) of the Code of Criminal Procedure, the substantive sentence of three months alone is set aside and the same is reduced to imprisonment, till rising of the court. Three months time is granted to the revision petitioner to pay this amount as well. The revision 9 Crl. R.P. No.1715 of 2003 petitioner is directed to appear before the court below on 28.04.2014 to receive the sentence, till then the magistrate is directed to keep the execution of sentence in abeyance. If the revision petitioner does not appear and comply with the direction, then the magistrate is at liberty to proceed against the revision petitioner in accordance with law. With the above modification of the substantive sentence alone, the revision is disposed of. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss