T.M. Varghese and Susan W/o T.M. Varghese v. K.V. Chacko and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939** **Crl.Rev.Pet.No. 276 of 2012 ()** **-------------------------------** ## **CRA 42/2011 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) COURT-1, PATHANAMTHITTA ST 1681/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA** **----------------** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED:** **---------------------------------------------------------------------------** **1. T.M.VARGHESE** - **2D PROVIDENCE GROVE, PROVIDENCE ROAD, ERNAKULAM,** - **KOCHI-682 018.** **2. SUSAN W/O.T.M.VARGHESE, 2D PROVIDENCE GROVE, PROVIDENCE ROAD, ERNAKULAM, KOCHI-682 018.** **BY ADVS.SRI.BABU CHERUKARA SRI.ANZAR BASHEER SRI.P.ANTO THOMAS SRI.PRATHEUSH.M.ANAND SMT.ROSAMMA MATHEW SRI.P.A.SALIM** ## **RESPONDENT(S)/COMPLAINANT:** **-------------------------------------------------** **1. K.V.CHACKO** - **K.J.HOUSE, CHURULIKODU P.O., PATHANAMTHITTA,** **PIN-689 668.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031.** **R1 BY ADVS. SRI.S.MUHAMMED HANEEFF SRI.R.KRISHNAKUMAR (CHERTHALA) R2 BY PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.No. 276 of 2012 ================== Dated this the 20[th] day of November, 2017 ## **O R D E R** The two petitioners herein are the two accused for offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No.1681/2008 on the file of Judicial First Class Magistrate's Court-II, Pathanamthitta, on the basis of the complaint filed by the 1[st] respondent herein. Ext.P-1 dishonoured cheque dated 13.9.2007 issued jointly from the joint account of both the two accused is for Rs. 1,75,000/-. The trial court as per the impugned judgment rendered on 28.1.2011 has convicted both the accused for the abovesaid offence and has ordered that both of them will suffer imprisonment till rising of the court and that compensation amount of Rs. 87,500/- will be paid by each of the 2 accused to the complainant under Sec. 357(3) of the Cr.P.C., thus totalling to amount of Rs. Rs. 1,75,000/(cheque amount) and in default of payment, A-1 and A-2 will undergo simple imprisonment for 3 months each. The appeal preferred by the accused as Crl.Appeal No.42/2001 appellate court concerned [Court of Addl. Sessions Judge, (Ad-Hoc) Court-I, Pathanamthitta], as per the impugned judgment rendered on 23.12.2021 dismissed the appeal and has thereby confirmed the conviction and sentence rendered by the trial court. Crl.R.P.276/12 - : 2 :- It is challenging the concurrent verdicts of both the courts below that the petitioners have preferred the instant revision petition by taking recourse to the remedy conferred under Sec. 397 r/w. 401 of the Cr.P.C. 2. The revision petition was admitted on 31.2.2012 and interim order was passed suspending the sentence. This Court had modified the interim order by passing order dated 8.2.2012 on Crl.M.A.No. 1046/2012 that the sentence will be suspended on condition that each of the two petitioners should deposit a sum of Rs.50,000/- before the trial court in this case, thus totalling to Rs.1 lakh. It is now submitted by Sri.Babu Cherukara, learned counsel appearing for the revision petitioners that each of the petitioners have deposited Rs.50,000/- each, thus totalling to Rs. 1 lakh before the trial court, in compliance with this Court's order dated 8.2.2012, etc. 3. Heard Sri.Babu Cherukara, learned counsel appearing for the revision petitioners (A-1 and A-2), Sri.S.Muhammed Haneef, learned counsel appearing for R-1 (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-2 State. 4. The brief of the case of the complainant is to the effect that the accused persons had borrowed amount of Rs.1,75,000/- from the complainant and, in discharge of the said liability, the accused persons had issued Ext.P-1 cheque dated 30.9.2007 for Rs. 1,75,000/- from the joint account maintained by them in Canara Bank, Ernakulam, payable in favour Crl.R.P.276/12 - : 3 :- of the complainant and the cheque when presented resulted in dishonour, as per Exts.P-2 and P-3 bank memos dated 23.8.2008 and 7.4.2008 and that Ext.P-6 series of statutory demand notices under Sec. 138 privoso (b) of the Negotiable Instruments Act were duly sent by the complainant to the two accused persons concerned and the said notices were sent by registered post as per Ext.P-4 series postal receipts and Ext.P-5 series acknowledgment cards and that the petitioners had not responded to such notices and since the amount was not paid, the complainant after adhering to the requisite formalities, has instituted the abovesaid complaint, which led to the conduct of the trial. 5. During the trial, the complainant has examined himself as P.W-1 and has marked Exts.P-1 to P-6 series documents. The accused persons adduced oral evidence through D.W-1 (A-2) and D-W2 (sister of A-1 and wife of one Sri.Abi) and DW-3 (accused No.1). The accused have not marked any documentary evidence in this case. 6. P.W-1 has broadly deposed in tune with the contents of his complaint. He would depose that both the accused persons were the two partners running a textile shop by name “ _M/s.Soubhagya Textiles_ ” in Pathanamthitta and that for running of their business, the accused persons had borrowed the abovesaid amount of Rs.1,75,000/- and in discharge of the said liability, the instant cheque for the same amount has been issued jointly from the joint account maintained by both the accused, which when Crl.R.P.276/12 - : 4 :- presented resulted in dishonour, etc. 7. From the evidence of D.W-1 to D.W-3 and Sec. 313 Cr.P.C. statement, the defence of the accused persons appears to be that they never had any direct transactions with the complainant and that they had never voluntarily issued the instant cheque to the complainant as alleged in the present complaint. Further the specific case is that though they were running a textile shop by name, “ _M/s.Soubagya Textiles_ ”, the said shop was previously run by one Sri.Eby (A-1's sister's husband) and A-1, under the name and style of “ _M/s.Njarakkodan Textiles_ ”, and that prior to the functioning of “ _M/s.Njarakkodan Textiles_ ”, it was run under the name and style as “ _M/s.Anand Textiles_ ”, by the then prior owner. The said prior owner, who was then running the shop under the name and style of “ _M/s.Anand Textiles_ ” had incurred some liabilities with the complainant and when Sri. Eby had taken over the business from the owner of “ _M/s. Anand Textiles_ ”, he had agreed to pay off the liabilities owed by the previous owner to the complainant, etc. and that the instant cheque happens to be issued to Eby, etc. D.W-1 (accused No.2) would depose that she is not aware about any of the transactions with the complainant, but that she has signed Ext.P-1 cheque and had given to her husband as he had informed that the said cheque is to be given to Eby. D.W-2 (A-1's sister who happens to the abovesaid Eby's wife) has deposed that Eby and A-1 had incurred various liabilities to many persons while running the shop, Crl.R.P.276/12 - : 5 :- etc. D.W-3 (A-1) would depose that he and Eby had conducted the Textile shop at Pathanamthitta and its former name was “ _M/s.Anand Textiles_ ” and that the owner of “ _M/s.Anand Textiles_ ” and the complainant had some transactions and that the owner of “ _M/s.Anand Textiles_ ” had owed a sum of Rs.1,75,000/- to the complainant and Eby agreed to pay this amount and conducted the textiles shop and that Eby was not able to pay this amount and the complainant had demanded third party cheque. Due to this, he and his wife (A-2) had given the signed cheque as per Ext.P-1 to Eby, which was given as security to the complainant and that Ext.P-1 cheque was thus given to Eby and that he had never borrowed any amount from the complainant, etc. 8. In Sec.313 statement, the version of the accused was to the effect that the cheque was given to the complainant by Sri.Eby without knowledge of the accused. While deposing evidence as defence witness, the accused has admitted that it is to discharge the debt taken over by Eby, which is to be paid to the complainant, that the complainant had demanded third party cheque, and accordingly, the cheque was given, etc. Even if the abovesaid defence version is taken as it is, there appears to be a major contradiction in the case set up at the stage of Sec.313 questioning process, compared to the factual position taken by them at the stage of adducing defence evidence and at the stage of defence evidence, the accused had in a way admitted that Eby had taken over liability of the previous owner, which Crl.R.P.276/12 - : 6 :- was owed to the complainant, and for settling that liability, the joint cheque of A-1 and A-2 was given to Eby and that A-1 and Eby were the partners of the shop, which was run under the name and style of “ _M/s.Njarakkodan Textiles_ ”. Therefore, even taking the defence evidence as it is, it will clearly show that even the accused would concede that the cheque was voluntarily signed and given by A-1 and A-2 to Eby to be handed over to the complainant. That apart, apart from raising these oral assertions, no clinching circumstances have been let in before the trial court to at least remotely establish the veracity of the abovesaid defence suggestion. 9. It is in the light of these aspects, that both the courts below have concurrently found that the oral evidence of P.W-1 is broadly credible and believable and that the defence has not been able to clinchingly establish their contentions. That apart, even taking the defence evidence as it is, they have in a manner virtually admitted that A-1 and A-2 have jointly issued the cheque to Eby to be handed over voluntarily to the complainant to discharge a liability of Rs.1,75,000/-, which was owed to the complainant. That apart, both the accused persons have candidly admitted that the signatures in Ext.P-1 cheque belong to them and that the cheque has been issued from their joint account. Therefore, going by the legal principles well settled by a catena of rulings of the Apex Court and various High Courts as in _**T.Vasanthakumar v. Vijayakumari**_ reported in (2015) 8 SCC 378, _**Rangappa v. Sree Mohan,**_ reported in (2010) 11 Crl.R.P.276/12 - : 7 :- SCC 441, etc. the complainant is certainly entitled to draw the benefit of statutory presumption under Sec. 118(1) and Sec. 139 of the N.I. Act. The accused persons have not been able to demolish the statutory presumption even going by the inferior standard of proof based on preponderance of probabilities. That apart, even their case would, in a manner, admit that they have voluntarily issued the cheque in question to Eby to be handed over to the complainant. It is in the light of all these aspects, that the trial court has found that the accused persons are liable to be convicted for the offence punishable under Sec.138 of the N.I. Act. The said fact findings made by both the courts below cannot be said to be vitiated by any gross perversity or grave illegality, etc. So this Court is not in a position to interfere with the said fact finding regarding the conviction of the petitioners, by exercise of the revisional powers conferred on this Court. 10. As regards the question of sentence, the trial court has imposed only substantive sentence of imprisonment till rising of the court and that each of the two accused should pay Rs.87,500/- each, thus totalling to Rs. 1,75,000/- (which is the cheque amount) to the complainant with the default sentence clause of 3 months each. This has been confirmed by the appellate court. The courts below appear to have been quite lenient and liberal in favour of the accused, inasmuch as no interest amount has been awarded as envisaged in the Supreme Court ruling in _**R**_ . _**Vijayan v. Baby & Anr.**_ reported in reported in (2012) 1 SCC 260. Therefore, it is Crl.R.P.276/12 - : 8 :- not proper and right for this Court to interfere with the sentence, compensation amount, etc. 11. Having regard to the fact that the petitioners have deposited a total amount of Rs.1 lakh before the trial court and having regard to the fact that the compensation amount imposed on each of the two accused comes only Rs. 87,500/-, the default sentence clause could be reduced from three months to one month's simple imprisonment. 12. Sri.Babu Cherukara, learned counsel appearing for the revision petitioners (accused) submits that in case this Court is so inclined to confirm the conviction and the sentence, etc., then this Court may grant at least 6 months' time to pay the balance amount. Having regard to the facts and circumstances of this case, this Court is not inclined to grant more than three months. Accordingly, the following orders and directions are issued: - _(i) The impugned conviction, substantive sentence of imprisonment till rising of the court imposed on each of the two petitioners, payment of compensation amount of Rs.87,500/- each imposed on each of the two accused will stand confirmed._ - _(ii) The default sentence clause is reduced from 3 months simple imprisonment to one month each._ - _(iii) In case the petitioners have deposited any amounts before the trial court in relation to this case, then the said court shall forthwith release the said amounts to the complainant on a request in that regard made by that party. The said amount so deposited shall also be deducted from the total amount payable by the accused persons and the petitioners need pay only the balance amount in that regard._ - _(iv) The petitioners will pay the balance amounts due to the complainant on or before 31.3.2018. On receiving such payments, the complainant will issue necessary receipts evidencing such payment to enable the accused persons to produce the same before the trial court concerned to satisfy the said court about such payments._ - _(v) Each of the two accused will personally appear before the trial court at 11 a.m. on any day on or before 31.3.2018 to receive the sentence of imprisonment till rising of the court to be suffered by each of the two accused and to satisfy the said_ Crl.R.P.276/12 - : 9 :- _court about the payment of the balance compensation amount payable as directed herein above._ - _(vi) On default of payment of the said amount as directed above, the petitioners will have to undergo to simple imprisonment for a period of one month each._ - _(vii) Until 31.3.2018 all further coercive steps that may be taken against the petitioners in pursuance of the execution of the impugned sentence in this case will stand deferred._ The Registry will forward a copy of this order to the trial court for necessary information. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge