Vazhakalil Sudheer v. Praveen Kumar M.P. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936** **Crl.Rev.Pet.No. 1721 of 2014 ()** **------------------------------------------** **AGAINST THE JUDGMENT IN Crl.APPEAL NO. 345/2014 of SESSIONS COURT (SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE DIVISION, DATED 23-08-2014** **& AGAINST THE JUDGMENT IN CC 296/2013 of J.M.F.C.-II, VADAKARA, DATED 26.04.2014** ## **REVISION PETITIONER(S)/APPELLANT:** **-------------------------------------------------------** **VAZHAKALIL SUDHEER, AGED 42 YEARS, S/O. KRISHNAN, BUSINESS, UTHIRUMMAL HOUSE, JANATHA ROAD (NR), PUTHUPANNAM P.O., VATAKARA, KOZHIKODE DISTRICT.** **BY ADVS.SRI.R.PARTHASARATHY SMT.SEEMA PARTHASARATHY** ## **RESPONDENT(S)/RESPONENT & STATE :** **---------------------------------------------------------** **1. PRAVEEN KUMAR M.P., AGED 42 YEARS, S/O. PADMANABHAN, BUSINESS, 'ARCHANA', CHORODE, VATAKARA - 673 106.** **2. STATE OF KERALA** - **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.K.RAKESH ROSHAN** **SMT.THUSHARA.V** **R2 BY PUBLIC PROSECUTOR SRI. A. MOHAMMED SAVAD.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 0711-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ss** ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1721 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 7[th] day of November, 2014 ## O R D E R Accused in C.C.No.296/2013 on the file of the Judicial First Class Magistrate Court, Vatakara, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent herein against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, accused borrowed a sum of 3,22,000/- from the₹ complainant and in discharge of the liability, he had issued Ext.P1cheque, which when presented was dishonored for the reasons ‘funds insufficient’, evidenced by Ext.P2 dishonor memo. Complainant issued Ext.P3 notice on 18.08.2012, and on the same day vide Ext.P4 postal receipt. The same was returned with postal endorsement ‘unclaimed’. Since they did not receive the 2 Crl. R. P. No.1721of 2014 acknowledgment, they sent a complaint to the post master and they sent Ext.P10 reply stating that, the notice was redirected to another post office, within whose jurisdiction the addressee resides and after intimation since he did not claim the same, has been returned ‘unclaimed’. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, the particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P12 were marked on his side. After closure of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, there was no transaction between himself and the complainant and he 3 Crl. R. P. No.1721of 2014 had not given any cheque. He had not adduced any evidence to prove his case. After considering the evidence on record, court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo imprisonment, till rising of the court and also to pay a fine of 3,22,000/- with interest₹ at 9% per annum from the date of the cheque and if the fine amount is realised the same was directed to the revision petitioner to pay the cheque amount of 3,22,000/-, as₹ compensation to the complainant, in default to undergo simple imprisonment for two months more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No.344/2014 before the Sessions Court, Kozhikode, which was made over to the Additional Sessions Judge (Special Judge for Marad cases), Kozhikode, for disposal and the learned Sessions Judge by the impugned judgment dismissed the appeal, confirming the order of conviction sentence passed by the court below. Aggrieved by the Crl. R. P. No.1721of 2014 4 same, the present revision has been filed. 4. Heard both sides. 5. The counsel for the revision petitioner submitted that, there is no evidence adduced on the side of the complainant to prove that, he has got the financial capacity to raise and pay the amount. The documents produced by him will not show that, he is having the capacity and even in the account, it will not be seen that, so much amount was in the account. Further there was no proper service of notice as well. So the courts below were not justified in convicting the appellant for the offence alleged. 6. On the other hand, the counsel for the respondent submitted that, a civil suit has been filed and that has been decreed. Further, no evidence has been adduced to rebut the presumption. The documents will go to show that, intimation has been given and it was returned as 'unclaimed', which is evident from the reply of the postal authorities. Further he had not adduced any evidence as 5 Crl. R. P. No.1721of 2014 well. So the courts below were perfectly justified in convicting the appellant for the offence alleged. 7. The learned Public Prosecutor supported the concurrent findings of the court below on this aspect. 8. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 3,80,000/-₹ and in discharge of the liability issued Ext.P1 cheque. The case of the accused was one of total denial. In order to prove the case of the complainant, complainant himself was examined as PW1 and he deposed in support of the case. He had produced Exts.P11 and P12 to show that, he is the partner of 'Paint Point' also. The fact that he is conducting a shop and he is partner in another firm has also proved by his evidence. Merely because, so much amounts were not there in the account, itself is not sufficient to come to the conclusion that he has no capacity to raise the amount, especially when he is conducting two businesses. Further it was brought to the notice of this court that, the suit filed by the complainant against the revision petitioner for 6 Crl. R. P. No.1721of 2014 realization of the amount, on the basis of the cheque was decreed. That shows that, the contentions of the revision petitioner has not been accepted by the civil court, while decreeing the suit. Further he had not adduced any evidence to show that, there was no transaction between him and the complainant and the circumstances under which his cheque has reached the hands of the complainant as well. He did not produce any documents, examining himself or any witnesses to prove the circumstances as well. Once this is not proved by the revision petitioner, then it can only be presumed that, the cheque was issued in discharge of a legally enforceable debt for the amount due from the revision petitioner to the complainant. So under the circumstances, courts below were perfectly justified in coming to the conclusion that Ext.P1 cheque was issued by the revision petitioner in discharge of the amount due from him to the complainant. 9. It is true that, the endorsement in the notice shows that, it is returned as ‘not known’ and ‘unclaimed’ Crl. R. P. No.1721of 2014 7 but Ext.P10 reply received from the postal department shows that, notice was sent to another post office, namely Puduppanam Post Office, within whose jurisdiction the shop is situated and since the door was locked intimation dropped and in spite of that the notice has not been claimed, so it was returned as ‘unclaimed’. The revision petitioner had no case that he had not conducted any shop in that address. He will not receive notice in that address. He had not produced any documents to show that he is residing in a different house and no notice will be served on him in that address. Once the notice has been issued in the address in which it will be normally served by registered post and if it is returned as ‘unclaimed’, then it will be deemed to have been properly served and it will be sufficient notice under Section 138 of the Act. Further, notice in the case has been served in that address only. So under the circumstances, courts below were perfectly justified in coming to the conclusion that, there is proper service as contemplated under Section 138 of the Act. So 8 Crl. R. P. No.1721of 2014 under such circumstances, courts below were perfectly justified in coming to the conclusion that revision petitioner had committed the offence punishable under Section 138 of the Act and rightly convicted him for the said offence and does not call for any interference. 10. As far as the sentence is concerned, court below had quantified the fine as 3,22,000/- including 9%₹ interest on the cheque amount with substantive sentence of imprisonment, till rising of the court with default sentence of two months and directed to pay the amount to the complainant as compensation. It is also seen from the decree produced for perusal before this court, that the suit has been decreed for an amount of 2,80,000/- with 9%₹ interest from the date of suit that is 16.08.2012, till the date of decree and thereafter at 6% interest till realization. Since suit has already been decreed and the complainant has already attached the property of the revision petitioner, this court feels that, fine amount can be restricted to the cheque amount alone with default sentence. So the sentence is Crl. R. P. No.1721of 2014 9 ## modified as follows: The revision petitioner is sentenced to undergo imprisonment, till rising of the court and also to pay the cheque amount of 2,80,000/-, in default to undergo three₹ months simple imprisonment. If the fine amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code and if this amount is paid, then this will be adjusted towards the decree amount in the Civil Court in O.S.No.147/2012 of Sub Court Vatakara, under Section 357(5) of the Code. Three months time is granted to the revision petitioner to pay the amount. The revision petitioner is granted time till 07.02.2015 to pay the amount. If the amount is paid directly to the complainant and if he produces proof of payment which is being acknowledged by the complainant before the court below, then it can be treated as proper compliance of the direction of payment of compensation out of fine and court below is directed to record the same in the respective register and permit the revision petitioner to undergo substantive 10 Crl. R. P. No.1721of 2014 sentence of imprisonment till rising of court, as provided in **(2010(2) KLT 1017) Beena v. Balakrishnan Nair and Another** and **(2012(4) KLT 21) Sivankutty v. John Thomas and Another.** With the above direction, the revision petition is allowed in part. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, (Judge)** // True Copy // P.A. to Judge ss