V. D. Dirish v. P. K. Selvan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938** ## **Crl.Rev.Pet.No. 266 of 2017 ()** **------------------------------(AGAINST THE JUDGMENT IN CRL.A.NO. 724/2012 OF ADDITIONAL SESSIONS COURT - VIII, ERNAKULAM DATED 24-10-2016)** **(AGAINST THE JUDGMENT IN CC.NO. 4104/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI DATED 10-10-2012)** **-----------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **V.D.DIRISH, AGED 50 YEARS, S/O.DHAMODARAN, VAZHAPULLY HOUSE, KAZHIMBRAM, THRISSUR DISTRICT, PIN-680 568** **BY ADVS.SRI.E.VIJIN KARTHIK SRI.P.V.JEEVESH** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :** **----------------------------------------------------------------------------------------** **1. P.K. SELVAN, AGED 45 YEARS, S/O.P.K.KAILASAN, PANDIKASALAKKAL HOUSE, ANIYIL BEACH, EDAVANAKKAD.P.O., ERNAKULAM DISTRICT-682 502** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.266 Of 2017 --------------------------------- Dated this the 6th day of March, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.4104/2011 on the file of the Judicial First Class Magistrate Court-I, Kochi, instituted on the basis of a complaint filed by the 1st respondent herein. The trial court as per the judgment rendered on 10.10.2012 had convicted the petitioner for the above said offence and had sentenced the accused to undergo simple imprisonment for a period of six months and to pay a fine of Rs.4 lakhs and in default thereof, the accused shall undergo simple imprisonment for a further period of one month and the fine amount so realised was ordered to be paid as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the revision petitioneraccused has preferred Crl.A.No.724/2012 before the appellate court. The appellate Sessions Court concerned (Court of VIII Additional Sessions Judge, Ernakualm), as per the impugned judgment rendered on 24.10.2016 had upheld the impugned conviction but modified the substantive sentence of simple imprisonment for 6 months imposed by ::2:: Crl.R.P.No.266 Of 2017 the trial court to simple imprisonment for a period of 2 months and also upheld the direction to pay the fine amount of Rs.4 lakhs with default clause of simple imprisonment for one month and that the said amount is to be paid as compensation to the 1[st] respondent complainant under Sec.357(1)(b) of the Cr.P.C. It is thereafter, that the petitioner herein had challenged these verdicts of conviction and sentence by filing the instant Crl.R.P by taking recourse to the remedies under Sec.397 r/w 401 of the Cr.P.C 2. Heard Sri.E.Vigin Karthik, learned counsel appearing for the petitioner-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 complainant. In the nature of the order proposed to be passed in this petition, notice to R-1 complainant stands dispensed with. 3. The gist of the prosecution case is that towards discharge of a debt or liability owed by the accused to the complainant, the revision petitioner-accused had issued Ext.P-1 cheque dated 15.6.2011 for an amount of Rs.4 lakhs in favour of the complainant. The complainant had presented the said cheque for encashment which resulted in dishonour on the ground of “insufficiency of funds”. The complainant had sent statutory demand notice as envisaged in Sec.138(b) of the ::3:: Crl.R.P.No.266 Of 2017 N.I.Act, which was received by the accused. But, the accused neither send a reply nor had repaid the amount covered by the cheque which resulted in the institution of the present complaint and consequent conduct of the trial. During the trial, the complainant had examined himself as PW-1 and marked Exts.P-1 to P-6 documents. The defence has not adduced any oral or documentary evidence. 4. The specific case of PW-1 (complainant) is that the accused borrowed from him an amount of Rs.4 lakhs, after executing a promissory note and when the complainant had demanded back the amount, the accused had issued Ext.P-1 cheque for an amount of Rs.4 lakhs after taking back the promissory note. The accused had assured that the cheque on presentation will be honoured. However, the cheque on presentation was resulted in dishonour which led to the complainant taking steps for initiation of the instant complaint. PW-1 had specifically deposed that the accused had come to the residence of the complainant and had issued the cheque in question and that he had also taken the promissory note, etc. The main attempt made by the defence while cross-examining PW-1 was that the transaction was between the accused and one Bahuleyan, to whom he had entrusted the blank signed cheque in question which was misused by the ::4:: Crl.R.P.No.266 Of 2017 complainant along with the said Bahuleyan. PW-1 stoutly denied the said suggestion and he stated that he has no acquaintance with the said Bahuleyan and further PW-1 had again deposed that the accused borrowed the amount since he received an attachment notice in March, 2011 and on earlier occasions also the complainant lent money to the accused on several times, etc. Further PW-1 has deposed that the accused had brought a duly filled cheque, signed in his presence and delivered to him. PW-1 also asserted that the complainant and accused have close acquaintance and the complainant visited the residence of the accused on ten times, etc., and that he had given 3 signed blank cheques to Bahuleyan and the present dishonoured cheque is one among the 3 cheques which was misused by the complainant, etc. The trial court found on evaluation of the evidence that except making the averment that the complainant has transaction with the Bahuleyan, to whom he had given 3 signed blank cheques, etc., no clinching factual circumstances have been brought out in the evidence so as to vindicate any suggestion and apart from that the defence has not been adduced any evidence to fortify such suggestion. Accordingly, on an evaluation of the evidence held that the version given by PW-1 appears to be credible and believable and that the complainant has proved the ::5:: Crl.R.P.No.266 Of 2017 execution and issuance of the cheque. Moreover, it is not in dispute that the cheque in question has been issued from the account of the accused and the cheque bears the signature of the accused, etc. No serious objections have been argued by the accused to establish that the findings of the courts below regarding the compliance of statutory formalities for forwarding the complaint is in any manner legally wrong, etc. It is on this basis that both the courts below have come to the considered conclusion that the petitioner is liable to be convicted. This Court is not convinced that appreciation of evidence and the resultant decision arrived at by both the courts below is in any manner perverse or unreasonable. No illegality or impropriety could be established by the petitioner in respect of the above case. Moreover, as regards the discrepancy in the evidence given by the complainant, it has been held by the Apex Court in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 in para 9, as follows: “9. The trial Judge found in favour of the accused by taking note of some discrepancies in the complainant's version. As per the trial Judge, in the course of the cross-examination the complainant was not certain as to when the accused had actually issued the cheque. It was noted that while the complaint stated that the cheque had been issued in December 2000, at a later point it was conceded that the cheque had been handed over when the accused had met the complainant to obtain the work completion certificate for his house in March 2001. Later, it was stated that the cheque had been with the complainant about 15-20 days prior to the presentation of the same for encashment, which would place the date of handing over of the cheque in January 2001.” ::6:: Crl.R.P.No.266 Of 2017 The Apex Court in the case T.Vasanthakumar v. Vijayakumari reported in (2015) 8 SCC 378 has held that where the cheque as well as the signatory thereon has been accepted by the accused, the presumption under Sec.139 would operate and then the burden shifts on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. In that case, the Apex Court found that the explanation given by the accused was unacceptable and as the accused has failed to discharge the burden, the High Court was misplaced in putting the burden of proof on the complainant. Accordingly, this Court is of the view that the above said conviction rendered by the courts below does not warrant any interference at the hands of the revisional court. As regards the sentence it is to be noted that the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and the Sessions Court court modified the said substantive sentence and reduced the same to simple imprisonment for 2 months. This Court is of the view that the said substantive sentence imposed by the court below is rather excessive and disproportionate. The cheque amount is for Rs.4 lakhs and the fine amount imposed as Rs.4 lakhs cannot be in any manner unjust or unfair. In the light of these aspects, this Court is inclined to reduce the substantive sentence to ::7:: Crl.R.P.No.266 Of 2017 till the rising of the court and confirm the fine amount of Rs.4 lakhs. 5. Sri.E.Vigin Karthik, learned counsel appearing for the revision petitioner, submits that in case this Court is inclined to uphold the conviction, this court may suitably modify the sentence and also grant reasonable time by atleast 10 months to pay the fine amount. Accordingly, the following directions and orders are passed. - (i) The impugned conviction for the offence under Sec.138 of the N.I.Act is confirmed. - (ii) The substantive sentence of simple imprisonment for 2 months on the petitioner is set aside and will stand modified and reduced to imprisonment till the rising of the court. - (iii) The sentence to pay fine of Rs.4 lakhs and to disburse the said amount as compensation to the complainant under Sec.357(1) (b) of the Cr.P.C and in default of payment of fine, the accused shall undergo simple imprisonment for one month, etc., are also confirmed. - (iv) The petitioner is given 8 months' time from 15.3.2017 to pay the fine amount of Rs.4 lakhs. - (v) The petitioner will personally appear before the trial court at 11:00 a.m. on 18.11.2017 to receive the sentence of imprisonment till the rising of the court and to satisfy the trial court about the payment of fine of Rs.4 lakhs. - (vi) Needless to say, on default of payment of fine amount, the petitioner will have to undergo simple imprisonment for a period of one month. - (vii) Until 18.11.2017, all further proceeding taken in pursuance of the execution of the impugned sentence will stand deferred. ::8:: Crl.R.P.No.266 Of 2017 Needless to say, on default of the petitioner either to appear before the trial court on 18.11.2017 or to make the payment of fine amount, then the trial court will be at liberty to take appropriate action against the petitioner in accordance with law. With these observations and directions, the Crl.R.P. stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-