Thomson v. M/S Metro Tyres Ltd. and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan, J.
Judgment Date: 2014-12-12
Court Decision / Holding: The revision petition is allowed in part and disposed of. The sentence is modified to imprisonment till the rising of the court and payment of Rs. 20,000 as compensation, with two months to deposit; in default, two months imprisonment under Section 357(3) CrPC. Execution is kept in abeyance.
Final Disposition: Allowed in part

Parties to the Case

Appellants / Petitioners

Thomson, Proprietor, TJ Enterprises

Respondents

M/S Metro Tyres Ltd.
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri M.L. Suresh Kumar

Counsels for Respondents

• Sri N. Suresh (Public Prosecutor)

Case Synopsis & Summary

This Kerala High Court criminal revision petition concerns a conviction under Section 138 of the Negotiable Instruments Act. Thomson, the proprietor of TJ Enterprises, faced a complaint by Metro Tyres Ltd. alleging that he issued Ext. P1 a cheque for Rs. 17,000 in discharge of a debt, which bounced (Ext. P2) and was followed by Ext. P4/P5 notices evidencing demand for payment. The Magistrate’s court convicted Thomson under Section 138 NI Act and sentenced him to four months’ simple imprisonment plus a direction to pay Rs. 20,000 as compensation under Section 357(3) CrPC, with default imprisonment. The First Appellate Court upheld the conviction and sentence. Thomson challenged in revision, arguing misappreciation of evidence and that the sentence was harsh, noting his claim that the debt was settled and that the cheque was given as security for four sewing machines valued at Rs. 48,896; he contended the complaint was misused. The State opposed interference, urging that the lower courts rightly convicted. The High Court, after hearing, acknowledged the evidence supporting the complainant’s case but found scope to modify punishment in light of the civil character of the offence. Relying on Damodar S. Prabhu v. Sayed Babalal H., the court concluded that while Section 138 retains criminal colour, the remedy is to secure payment, and hence modified the sentence to imprisonment till the rising of the court with Rs. 20,000 compensation and a two‑month deposit period, keeping execution in abeyance. The petition is allowed in part.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) of the Code of Criminal Procedure, 1973

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends misappreciation of evidence and argues the sentence is harsh and excessive. He asserts he had paid the amount during the course of business discussions and that the cheque was issued as security for goods purchased; the company’s claim is disputed, and the complaint has been misused. He seeks relief by reappraising the evidence and reducing the severity of the punishment, noting the civil nature of the underlying debt and the possibility of settlement beyond the cheque’s dishonor.

Contentions of Respondents

The respondents (State via Public Prosecutor) submit that the trial court’s conviction and the concurrent appellate determinations are sound on evidence and law. They urge no interference with the sentence, emphasizing that Section 138 NI Act is a criminal provision with a moral duty to pay and that compensation is proper under Section 357(3) CrPC. They rely on the established jurisprudence that ensures payment of debt despite the offense’s criminal colour.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H.	JT 2010 (4) SC 457	Positive	Cited to support the view that despite criminal colour, the offence is primarily aimed at securing payment; reinforces the requirement of compensation following conviction in Section 138 NI Act cases.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 12TH DAY OF DECEMBER 2014/21ST AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 3356 of 2004 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRL.A 409/2004 of I ADDL.DISTRICT COURT, ERNAKULAM DATED 06-12-2004** **AGAINST THE JUDGMENT IN CC 1085/2000 of CHIEF JUDL.MAGISTRATE, ERNAKULAM DATED 31-03-2004** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **THOMSON, PROPRIETOR, T.J.ENTERPRISES, C/O. MACHINE HOUSE, VADAKKENCHERRY ROAD, KUNNAMKULAM, THRISSUR DIST.** **BY ADV. SRI.M.L.SURESH KUMAR** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **------------------------------------** **1. M/S. METRO TYRES LTD., 41/2724, A.K.R. BUILDINGS, PROVIDENCE ROAD, ERNAKULAM, REPRESENTED BY ITS BRANCH MANAGER KARUNAKARAN.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC** **R2-BY P.P.SRI.N.SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.3356 of 2004 .................................................. Dated this the 12[th] day of December, 2014. ## **O R D E R** The accused in C.C.No.1085/2000 on the file of the Chief Judicial Magistrate Court, Ernakulam is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner used to purchase articles from their shop and in discharge of the amount of Rs.17,000/-, he had issued Ext.P1 cheque, which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo, which was intimated to him by Ext.P3 intimation letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt which was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, particulars of offence were read over and Crl.R.P.No.3356 of 2004 2 explained to him and he pleaded not guilty. In order to prove the case of the complainant, authorized agent of the complainant authorized by Ext.P7 letter was examined as PW1 and Exts.P1 to P6 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had purchased four sewing machines for an amount of Rs.48,896/- from the complainant concern and issued a blank singed cheque as security. Though he paid the amount, the cheque has not been returned. Misusing the cheque the present complaint was filed. In order to prove the case of the revision petitioner, the revision petitioner was examined as DW1 and one witness was examined as DW2. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him to undergo simple imprisonment for four months and also to pay a sum of Rs.20,000/- as compensation to the complainant under Section 357 (3) of the Code, in default to undergo one month simple imprisonment. Aggrieved by the same, he Crl.R.P.No.3356 of 2004 3 filed Crl.A.No.409/2004 before the Sessions Court, Ernakulam, which was made over to the First Additional Sessions Court, Ernakulam for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4.Considering the nature and scope of enquiry, this Court felt that the revision can be disposed of at the admission stage itself after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the second respondent dispensing with notice to the first respondent as notice sent to them was returned as whereabouts not known and the counsel for the revision petitioner submitted that the company has been closed. 5. The counsel for the revision petitioner submitted that the evidence of DW1 and other has not been property appreciated and the sentence imposed is harsh. 6. The learned Public Prosecutor supported the concurrent findings of the courts below. Crl.R.P.No.3356 of 2004 4 7. The case of the complainant in the complaint was that the revision petitioner was a regular customer and in discharge of the amount of Rs.17,000/- due from him, he had issued Ext.P1 cheque. But the case of the revision petitioner was that he had purchased four sewing machines for Rs.48,896/- and he had given a blank signed cheque as security. Though he paid the amount, the cheque was misused and the present complaint was filed. In order to prove the case of the complainant, the manager of the company was examined as PW1 and he had deposed in support of the case of the complainant. Though he was cross examined at length, nothing was brought out to discredit his evidence on these aspects. Further the revision petitioner had examined DW2, a staff of the complainant concern and he had denied that a blank signed cheque was obtained as security and he had also supported the case of the complainant that amount was due and cheque was issued in discharge of that liability. The evidence of DW1 will go to show that he had not produced any document to prove the discharge pleaded by him as well and he did not send any reply to the notice by the complainant when the cheque was dishonoured. So under the circumstances, the courts below 5 Crl.R.P.No.3356 of 2004 were perfectly justified in disbelieving the case of the revision petitioner and convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the courts below do not call for interference. 8. As regards the sentence is concerned, the courts below had sentenced him to undergo simple imprisonment for four months and also to pay Rs. 20,000/- as compensation, in default to undergo simple imprisonment for one month under Section 357(3) of the Code and this was confirmed by the appellate court as well. In the decision reported in **Damodar S. Prabhu v. Sayed Babalal H.** (JT 2010 (4) SC 457) the Hon'ble Supreme Court has held that offence under Section 138 is virtually of civil nature but criminal colour has been given by incorporating the same in the Act with an intention to make the drawer of the cheque to pay the amount. Further, whenever conviction is entered, it must be followed by payment of compensation. So the court below had awarded Rs.20,000/-, which is more than the cheque amount as compensation. Under the circumstances, this Court feels that substantial sentence of four months simple imprisonment imposed by the court below appears to be excessive and the same can be reduced Crl.R.P.No.3356 of 2004 6 to imprisonment till the rising of court and that will meet the ends of justice. So, the sentence is modified as follows: The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay compensation of Rs.20,000/- to the complainant, in default to undergo simple imprisonment for two months under Section 357 (3) of the Code. Two months time is granted to the revision petitioner to deposit the amount before the court below. Till then execution of the sentence is directed to be kept in abeyance. With the above modification of the sentence alone, the revision petition is allowed in part and disposed of. Office is directed to communicate this order to the concerned court at the earliest. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.3356 of 2004 7