SUSEEL NARAYANAN B v. JOY K.J and THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **Crl.Rev.Pet.No.141 OF 2020** **AGAINST THE JUDGMENT IN CRA 344/2017 DATED 03-07-2019 OF SESSIONS COURT,KOZHIKODE** **AGAINST THE JUDGMENT IN CC 2905/2015 DATED 03-10-2017 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS (N.I.ACT CASES), KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SUSEEL NARAYANAN B AGED 60 YEARS S/O NARAYANAN , KALATHINGAL HOUSE, KARUVAMBRAM P.O, MELAKKAM, MANJERI, MALAPPURAM.** ## **BY ADV. SRI.R.RANJITH (MANJERI)** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 JOY K.J AGED 44 YEARS S/O JACOB , LOVE DALE, NEYTHYATTU PARAMBA, PUTHIYARA P.O, KOZHIKODE.** **2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADV. SRI.R.SUDHISH R1 BY ADV. SMT.M.MANJU SRI.C.K.PRASAD PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.02.2020, ALONG WITH Crl.Rev.Pet.200/2020, THE COURT ON 19.02.2020 PASSED THE FOLLOWING:** Crl.R.P.Nos.141/2020 & 2 200/2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** **Crl.Rev.Pet.No.200 OF 2020** **AGAINST THE JUDGMENTS IN CRA 343/2017 OF SESSIONS COURT, KOZHIKODE DATED 03.07.2019** **AGAINST THE JUDGMENT IN CC 2904/2015 OF SPECIAL J.F.C.M.C (N.I.ACT CASES), KOZHIKODE DATED 03-10-2017** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SUSEEL NARAYANAN B. AGED 60 YEARS S/O.NARAYANAN, KALATHINGAL HOUSE, KARUVAMBRAM P.O., MELAKKAM, MANJERI, MALAPPURAM.** **BY ADVS. SRI.R.RANJITH (MANJERI) SMT.T.U.ANUKRISHNA** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 JOY K.J., AGED 44 YEARS S/O.JACOB, LOVE DALE, NEYTHYATTU PARAMBA, PUTHIYARA P.O., KOZHIKKODE-673 007. 2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. R1 BY ADV. SRI.R.SUDHISH R1 BY ADV. SRI.TENISON THOMAS R1 BY ADV. SMT.M.MANJU SRI AJITH MURALI-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.02.2020, ALONG WITH Crl.Rev.Pet.141/2020, THE COURT ON 19.02.2020 PASSED THE FOLLOWING:** Crl.R.P.Nos.141/2020 & 3 200/2020 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.Nos.141 of 2020 & 200 of 2020 ----------------------------------------------------Dated this the 19[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the cases C.C.Nos.2904/2015 and 2905/2015 on the file of the Court of the Special Judicial First Class Magistrate (N.I.Act Cases), Kozhikode. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') in both cases and convicted him thereunder. In the case C.C.No.2904/2015, the trial court sentenced him to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. In the case C.C.No.2905/2015, the trial court sentenced him to pay a fine of Rs.5,25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of five months. In both cases, Crl.R.P.Nos.141/2020 & 4 200/2020 the trial court directed that, if the fine amount was realised, it shall be given as compensation to the complainant. 3. Aggrieved by the order of conviction and sentence passed against him by the trial court in the aforesaid cases, the petitioner filed Crl.A.Nos.343/2017 and 344/2017 before the Court of Session, Kozhikode. The appellate court confirmed the conviction and sentence against the petitioner in both cases and dismissed both appeals. 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below in the aforesaid two cases, the accused has filed these revision petitions. 5. Heard learned counsel for the revision petitioner/accused and also the first respondent/complainant. 6. The case of the complainant in the case C.C.No.2904/2015 is that the accused issued a cheque dated 31.07.2014 for Rs.1,00,000/- to him towards repayment of the amount borrowed by the accused from him. In the case C.C.No.2905/2015, the case of the complainant is that the accused issued a cheque dated 31.10.2014 for Rs.5,25,000/- Crl.R.P.Nos.141/2020 & 5 200/2020 towards repayment of the amount borrowed by the accused from him. The complainant presented the cheques in bank. They were returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent lawyer notices to the accused in both cases demanding payment of the amount of the cheques. The accused received the notices in both cases. He sent a reply raising false contentions. He did not pay the amount of the cheques. 7. The two cases were jointly tried by the learned Magistrate. During the trial of the cases, the complainant got himself examined as PW1 and another witness was examined on his side as PW2 and Exts.P1 to P16 documents were marked. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence that there were financial and other transactions between him and the accused. He also gave evidence that the accused had borrowed an amount of Rs.14,00,000/- from him in two instalments. He further stated that, in repayment of the aforesaid amount, the accused issued a cheque for Rs.14,00,000/- to him. The aforesaid cheque was returned Crl.R.P.Nos.141/2020 & 6 200/2020 unpaid for the reason that there was no sufficient amount in the account of the accused. PW1 then filed a complaint against the accused in the Court of the Judicial First Class Magistrate-I, Kozhikode as C.C.No.945/2012. PW1 also gave evidence that there was mediation talk between the parties and the case C.C.No.945/2012 was settled between him and the accused on the condition that the accused would pay an amount of Rs.6,25,000/- to him. PW1 further stated that the accused executed Ext.P1 agreement incorporating the terms of the settlement. He has also stated that the accused executed and issued to him two cheques, one cheque dated 31.07.2014 for Rs.1,00,000/- and another cheque dated 31.10.2014 for Rs.5,25,000/- in repayment of the aforesaid amount of Rs.6,25,000/-. 9. The complainant also examined PW2 to prove the mediation between him and the accused and the issuing of the cheques by the accused to him. The evidence of PW2 corroborates the testimony of PW1 in material particulars in that regard. Crl.R.P.Nos.141/2020 & 7 200/2020 10. PW1 has given evidence that the accused filled up the entries in the cheques and signed them in his presence and in the presence of the witnesses. PW2 has also given evidence with regard to the execution of Exts.P2 and P8 cheques by the accused and delivery of the same by the accused to the complainant. 11. In the reply notices sent by the accused to the complainant, he admitted execution of Exts.P2 and P8 cheques by him though his plea was that the cheques were given to another person by name Suresh. 12. The plea of the accused was that there was transaction between his wife and Suresh, the brother-in-law of the complainant and that his wife had borrowed an amount of Rs.2,00,000/- from Suresh and at that time, Suresh had obtained the cheques for Rs.1,00,000/- and Rs.5,25,000/- drawn in the name of the complainant. 13. No evidence was adduced by the accused to prove the plea that he had given Exts.P2 and P8 cheques to Suresh as security for the amount borrowed by his wife from Suresh. Moreover, it eludes comprehension why two cheques drawn for a Crl.R.P.Nos.141/2020 & 8 200/2020 total amount of Rs.6,25,000/- should be given to Suresh, that too which were drawn in the name of the complainant, as security for the amount allegedly borrowed by the wife of the accused from Suresh. At any rate, no evidence was adduced by the accused to prove the aforesaid plea. 14. There is no dispute with regard to the fact that the complainant had filed a case against the accused as C.C.No.945/2012 for an offence under Section 138 of the Act based on a cheque for Rs.14,00,000/-. There is also no dispute with regard to the fact that the complaint in C.C.No.945/2012 was withdrawn by the complainant and the accused was acquitted in that case under Section 257 Cr.P.C. 15. Ext.P1 is the agreement executed by the accused with regard to the settlement of the case C.C.No.945/2012. PW1 and PW2 have given evidence with regard to the execution of Ext.P1 agreement by the accused. Ext.P1 agreement specifically mentions issuing of Exts.P2 and P8 cheques by the accused to the complainant as per the terms of the settlement. 16. Ext.P1 agreement is dated 31.03.2014. Ext.P16 is the copy of the judgment of the Magistrate's Court in the case Crl.R.P.Nos.141/2020 & 9 200/2020 C.C.No.945/2012. It is also dated 31.03.2014. There can be no doubt with regard to the fact that it was on the basis of Ext.P1 agreement arrived at between the parties that the complainant had withdrawn the complaint in C.C.No.945/2012 and the accused was acquitted by the trial court in that case. 17. Ext.P14 is the certified copy of the complaint in the case C.C.No.945/2012. It would show that the aforesaid case was based on the dishonour of a cheque for Rs.14,00,000/allegedly issued by the accused to the complainant. Ext.P15 is the certified copy of the proof affidavit filed by the complainant in that case. Exts.P1 and P14 to P16 documents are sufficient to prove the liability of the accused to the complainant and the issuance of Exts.P2 and P8 cheques by the accused to the complainant in discharge of that liability. 18. Thus there is overwhelming documentary evidence to corroborate the testimony of PW1 and PW2 regarding the liability of the accused to the complainant and execution and issuing of the two cheques by the accused to the complainant. Added to such evidence, there is the admission of the accused regarding the drawing of the two cheques in favour of the complainant with Crl.R.P.Nos.141/2020 & 10 200/2020 his inability to prove his plea that the cheques were given as security to Suresh. 19. In the aforesaid circumstances, the inconsistencies, if any, in the testimony of PW1 and PW2, pale into insignificance. 20. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to re-appreciate the evidence and come to its own conclusion, when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court Crl.R.P.Nos.141/2020 & 11 200/2020 shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 21. The trial court has sentenced the petitioner/accused to pay only the amount of the cheques as fine and directed to pay that amount to the complainant as compensation. There is no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the trial court in both cases. 22. Consequently, the revision petitions are dismissed. The orders of conviction and sentence passed against the petitioner/accused by the trial court for the offence under Section 138 of the Act in C.C.Nos.2904/2015 and 2905/2015, which stand affirmed by the appellate court, are confirmed. 23. Considering the conduct of the petitioner/accused in the facts and circumstances of the case, it would have been not proper to grant any time to him to remit the amount of fine in the trial court. However, considering the fact that the total amount of fine to be remitted by the petitioner/accused in the two cases would come to Rs.6,25,000/-, I am inclined to grant a Crl.R.P.Nos.141/2020 & 12 200/2020 total period of three months from today to pay that amount. 24. Consequently, the petitioner/accused is granted a period of one month from today to remit the amount of fine in the case C.C.No.2904/2015 and a period of three months from today to remit the amount of fine in the case C.C.No.2905/2015. It is made clear that the petitioner/accused will not be granted any further time to remit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr TRUE COPY PS TO JUDGE