V.C. Radhakrishnan v. Kunnathu Madathil Rajesh and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932** **Crl.Rev.Pet.No. 1663 of 2010()** **-----------------------------CRA.311/2003 of ADDL.SESSIONS COURT, THALASSERY CC.522/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA ....................** **REVISION PETITIONER/APPELLANT/ACCUSED :-** **----------------------------------------------------------------------** **V.C.RADHAKRISHNAN, S/O. KRISHNAN NAIR, KRISHNA NIVAS, PALATHUM KARA, KOOTHUPARAMBA.** **BY ADV. MR.P.U.SHAILAJAN** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :-** **--------------------------------------------------------------------------------------** **1. KUNNATHU MADATHIL RAJESH, S/O. KANNAN NAIR, " WOOD CARVING", VALIYAPARAMBATH HOUSE,KOOTHUPARAMBA AMSOM, TRIKANNAPURM DESOM, KANNUR DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY MR.P.P.RAMACHANDRAN R2 BY PUBLIC PROSECUTOR MR.M.R.VENUGOPAL** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **V.K.MOHANAN, J.** ## **----------------------------Crl.R.P.No.1663 of 2010** **--------------------------------Dated this the 2[nd] day of June 2010** ## **O R D E R** This revision petition is preferred by the accused in C.C.No.522/1999 in the court of Judicial First Class Magistrate, Koothuparamba and the appellant in Crl.A.No.311/2003 in the court of Additional Sessions Judge, Thalassery, challenging the conviction and sentence imposed against him. 2. The case of the complainant in the above cases is that the accused issued a cheque dated 24.6.99 in discharge his liability for an amount of Rs.1,50,000/-. According to the complainant, when the above cheque was presented for encashment, it was dishonoured for want of sufficient fund in the account maintained by the accused. Thus, though he sent a notice as contemplated by the Crl.R.P.No.1663 of 2010 : 2 : provisions of the N.I.Act, no amount was paid. With the above allegation, the complainant approached the trial court by filing a complaint alleged Sec.138 of the N.I.Act and the learned Magistrate took cognizance for the above offence and instituted C.C.No.522/1999. During the trial of the above case, the complainant has adduced evidence, both oral and Exts.P1 to P6 documentary evidence. The accused produced and marked Ext.D1 notice but no defence witness was examined. The trial court on appreciation of the evidence and materials found that the complainant has established his case and is entitled to the benefit of presumption under Sec.118 and 139 of the N.I.Act. It is also found that the revision petitioner/accused failed to rebut the presumption. Thus, the case of the complainant found proved and accordingly convicted the accused under Sec.138 of the N.I.Act and consequently he is sentenced to undergo simple imprisonment for 10 months and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment Crl.R.P.No.1663 of 2010 : 3 : for two months. It is also ordered that if the fine amount realized, the same shall be given to the complainant as compensation. Challenging the above conviction and sentence, the revision petitioner has preferred Crl.A.No.311/03 but by judgment dated 28.8.2009, the court of Sessions allowed the appeal only in part. Accordingly, the conviction imposed against the revision petitioner is confirmed and made certain modification with respect to the sentence. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till rising of court and also directed to pay a sum of Rs.1,50,000/- as compensation to the complainant under Sec.357(3) of Cr.P.C. and in default to pay the compensation, directed him to undergo simple imprisonment for one month. It is the above conviction sentence challenged in this revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of Crl.R.P.No.1663 of 2010 : 4 : the courts below. 4. On hearing the arguments advanced by the learned counsel for the revision petitioner and on perusal of the judgments of the courts below it can be seen that the case tried to set out by the defence is to the effect that he had no such transaction as claimed by the complainant. 5. When the complainant was examined he had adduced the evidence in respect of his allegation in the complaint by producing Ext.P1 cheque from the possession of the complainant. He had established his case, which was duly approved by the trial court as well as the lower appellate court. 6. Going by the trial court judgment, it can be seen that the revision petitioner has attempted to establish a case that cheque in question was one among the several cheques entrusted with the complainant as a security for availing of loan by one Santhosh, one of his friends. Though, some suggestions were made to PW1 he denied the Crl.R.P.No.1663 of 2010 : 5 : same and hence it is for the revision petitioner to substantiate such a plea. In the absence of any reasonable and convincing evidence as to how the cheque in question reached in the hands of the complainant and coupled with the fact that the cheque in question has produced by the complainant, the only possible conclusion that can be arrived is that the accused executed the cheque and issued the same to the complainant. The trial court as well as the lower appellate court after considering the materials and evidence, the complainant has established his case whereas the revision petitioner failed to rebut the presumption. This findings purely based upon facts and evidence which required no interference by the exercise of revisional jurisdiction of this court. Therefore, there is no merit in the revision petition. 7. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to make the payment and to receive the Crl.R.P.No.1663 of 2010 : 6 : sentence. I have no hesitation to consider the above requests in favour of the revision petitioner but subject to other relevant facts and legal position involved in the case. 8. Going by the evidence on record, the cheque in question is dated 24.6.1999 and the amount was borrowed from the complainant prior to that date. If that be so, as per the records, a sum of Rs.1,50,000/- belongs to the complainant is with the revision petitioner for the last 11 years. It is also relevant to note that the trial court sentenced the revision petitioner to undergo imprisonment for a period of 10 months but the lower appellate court has reduced the same into till the rising of the court. When the trial court imposed a fine of Rs.5,000/-, the lower appellate court directed the revision petitioner to pay a sum of Rs.1,50,000/- as compensation that only under Sec.357(3) of Cr.P.C. and on default sentence is fixed as one month. The Apex court in a recent decision in **Damodar S. Prabhu v. Sayed Babulal. H represented in J.T.2010(4) SC page 457** Crl.R.P.No.1663 of 2010 : 7 : has held that, in the case of dishonour of cheques, the court has to give priority of remedial aspect than the punitive aspect. In another case **Ahammedkutty v. Abdullakoya represented in 2009(6) Supreme Court cases 661,** the Supreme Court has held that no default sentence can be fixed in case of failure in paying compensation ordered under Sec.357(3) of Cr.P.C. 9. Considering the above facts and legal position, I am of the view that while maintaining sentence awarded by the lower appellate court, the amount of compensation to be given to the complainant can be enhanced and fixed the such amount as fine and the revision petitioner can also grant 3 months time to make the payment. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as imposed by the trial court as well as the lower appellate court. Accordingly the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and he is also sentenced to pay a fine of Rs.1,80,000/- and in default he is directed to undergo simple imprisonment for a period of 6 months and in case the fine amount is realised a sum Crl.R.P.No.1663 of 2010 : 8 : of Rs.1,75,000/- shall be given to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 02.09.2010 to receive the sentence and to make the payment of the fine amount. In case any failure on the part of the revision petitioner to appear in the court below as stated above, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. The execution of the warrant, if any, shall be deferred till 02.09.2010. ## **V.K.MOHANAN, JUDGE.** Jvt