V. Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 27TH DAY OF NOVEMBER 2014/6TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 2146 of 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRL.A 396/2000 of ADDL.SESSIONS COURT, KOZHIKODE DATED 30-05-2003** **AGAINST THE JUDGMENT IN ST 14/1999 of J.F.M.C, PAYYOLI DATED 23-08-2000** **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **V.VIJAYAN,S/O.GOPALAN NAIR, THOTTATHIL POIL (HOUSE), ERAMANGALAM P.O., BALUSSERY, KOZHIKODE DISTRICT. BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.SANTHARAM.P** **RESPONDENTS/COMPLAINANT & STATE: ----------------------------** **1.SHRI.M.T. SREEDHARAN, MUTTAN THARAMMEL POONATH, KADUVANNUR, KOYILANDY TALUK.** **2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2.BY P.P.SRI.N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.2146 of 2003 .................................................. Dated this the 27[th] day of November, 2014. ## **O R D E R** The accused in S.T.No.14/1999 on the file of the Judicial First Class Magistrate Court, Payyoli is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs. 30,000/- on 1.1.1996 and on 1.2.1996 when demanded issued Ext.P2 cheque dated 29.2.21996 in discharge of that liability, which when presented was dishonoured for the reason funds insufficient evidenced by Ext.P3 dishonour memo. The complainant issued Ext.P4 notice and the same was received by the revision petitioner evidenced by Ext.P5 acknowledgment. He had not paid the amount. So he committed the offence under Section 138 of the Act. Hence the compliant. 2. When the revision petitioner appeared before the court 2 Crl.R.P.No.2146 of 2003 below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, power of attorney of the complainant was examined as PW1 and postman was examined as PW2 and Exts.P1 to P5 were marked on his 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 given two cheques as security for the kury conducted by one Govindan and Chathukutty at Balussery and they filed complaint through PW1 misusing one of the cheque given. As in the defence evidence three documents are marked as Exts. D1 to D3 but no oral evidence was adduced on his side. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay Rs.35,000/- as compensation to the complainant. Though he filed Crl.A.No.396/2000 before the Sessions Court, Kozhikode, which was made over to the Additional Sessions Court for Crl.R.P.No.2146 of 2003 3 disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed. Aggrieved by the same, the present revision has been filed. 3. Though notice was ordered, it could not be served and in spite of fresh notice ordered, steps have not been taken. Considering the nature and scope of enquiry, this Court felt that further notice to the first respondent can be dispensed with and the case can be heard on merit and disposed of after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the second respondent. 4. The counsel for the revision petitioner submitted that the courts below have not properly understood the case of the defence and the documents produced. So he prayed for acquittal. 6. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below on this aspect. 7. The case of the complainant in the complaint was that accused borrowed Rs.30,000/- and issued Ext.P2 cheque in Crl.R.P.No.2146 of 2003 4 discharge of that liability. The case of the revision petitioner is one of total denial. He had produced Exts.D1 to D3 to prove that disputed cheque was given to some other person and that alone is not sufficient to come to the conclusion that the cheques were given to the same person and that has been misused unless cogent evidence has been adduced by the revision petitioner to prove the case. He did not produce any witnesses or enter witness box. PW1 had deposed that he was present when the transaction had taken place and he had seen the complainant paying the amount and the revision petitioner handing over the cheque. So execution and delivery of the cheque has been proved by the complainant. Though the revision petitioner had a case that he did not receive any notice, PW2 postman was examined and he deposed that he had delivered notice to the revision petitioner. His evidence was not shaken in spite of cross examination. So the courts below were perfectly justified in coming to the conclusion that the case of the revision petitioner is not probable or believable and rightly believed the case of the complainant and came to the conclusion that the revision petitioner had issued the disputed cheque in discharge of the legally enforceable debt for the amount due Crl.R.P.No.2146 of 2003 5 to the complainant and in spite of receipt of notice, he did not pay the amount, thereby he had committed the offence punishable under Section 138 of the Act and the concurrent findings of the court below on this aspect on evidence do not call for any interference. 8. The court below had sentenced the revision petitioner to undergo simple imprisonment for three months and also to pay compensation of Rs.35,000/- though the cheque was for an amount of Rs.30,000/-. This was confirmed by the appellate court as well. Considering the dictum laid down in **Damodar S. Prabhu v. Sayed Babalal H.** (JT 2010 (4) SC 457), this Court feels that it is not necessary to impose three months imprisonment and that can be reduced to till the rising of court and default sentence can be awarded. So the substantive sentence of three months simple imprisonment is set aside and the same is modified as follows: The revision petitioner is sentenced to undergo imprisonment till the rising of court and also to pay compensation of Rs.35,000/, in default to undergo simple imprisonment for three months under Section 357(3) of the Code. Two months time is granted to the revision petitioner Crl.R.P.No.2146 of 2003 6 to pay the amount or deposit the amount before court below. With the above modification of the sentence alone, the revision petition is allowed in part. Office is directed to communicate this order to the court below at the earliest. **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.2146 of 2003 7