Venugopal C.N. v. JinoY Thomas and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 12TH DAY OF DECEMBER 2014/21ST AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 2131 of 2014 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A 24/2012 of ADDL.SESSIONS COURT (ADHOCII), ERNAKULAM DATED 03-01-2013** **AGAINST THE JUDGMENT IN ST 459/2009 of J.M.F.C.,KOLENCHERRY DATED 22-11-2011** **REVISION PETITIONER(S)/APPELLANT: ---------------------------------** **VENUGOPAL C.N., AGED 43 YEARS, S/O. NARAYANAN, CHENAVELIKKAKATHU HOUSE, KINGINIMATTOM P.O., KOLENCHERY, ERNAKULAM.** **BY ADV. SRI.IEANS.C.CHAMAKKALA** ## **RESPONDENTS/RESPONDENTS:** **1. JINOY THOMAS, AGED 41 YEARS, S/O. THOMAS, ELANJIMATTATHIL HOUSE, KAKKADU P.O. PIRAVOM VIA, ERNAKULAM - 686 634.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R2 BY PUBLIC PROSECUTOR SRI.N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.2131 of 2014 .................................................. Dated this the 12[th] day of December, 2014. ## **O R D E R** The accused in S.T.No.459/2009 on the file of the Judicial First Class Magistrate Court, Kolencherry is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent against the revision petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). 2. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.35,000/and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonoured for the reason account closed vide Ext.P2 dishonour memo. The complainant issued Ext.P3 notice vide Ext.P4 postal receipt to the revision petitioner intimating dishonour and demanding payment of the amount and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Act . Hence the complaint. 3. When the revision petitioner appeared before the Crl.R.P.No.2131 of 2014 2 court 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, the complainant himself was examined as PW1 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 undertaken some carpentry work of construction of the house of the complainant, for which a blank singed cheque was given as security. That transaction was completed in the year 1998. The cheque was not returned. But no evidence was adduced on his side to prove his defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act, convicted him thereunder and sentenced him to undergo imprisonment till the rising of court and also to pay fine of Rs.35,000/-, in default to undergo simple imprisonment for one month. It is further ordered that fine amount if realized, the same be given to the complainant as compensation under Section 357(1)(b) of the Code. Aggrieved by the same, the revision petitioner 3 Crl.R.P.No.2131 of 2014 filed Crl.A.No.24/2012 before the Sessions Court, Ernakulam, which was made over to the Additional Sessions Court, Adhoc-II, Ernakulam for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4.Considering the nature of contention and the scope of enquiry , this Court felt that the revision can be disposed of at the admission stage itself after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the 2nd respondent dispensing with further notice to the first respondent in the revision. 5. The counsel for the revision petitioner submitted that the courts below had not properly appreciated the evidence and the complainant had not proved his case. So he prayed for acquittal. 6.The learned Public Prosecutor supported the concurrent findings of the courts below. 7. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.35,000/- Crl.R.P.No.2131 of 2014 4 and in discharge of that liability, he had issued Ext.P1 cheque. But the case of the revision petitioner was that he had undertaken some carpentry work for the construction of the house of the complainant during the year 1998 and the cheque was given as a security. The complainant was examined as PW1 and he deposed in support of his case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence. He had further stated that construction of the building is completed in the year 1998 and the cheque was issued in the year 2008. Further the account extract of the revision petitioner which was produced by him shows that it was closed on 7.10.2000. Further there is no possibility of issuing the cheque at that time namely 1998 as claimed by him. He had not taken any steps to get back the cheque. Further he did not mention in the account closed proceedings of the bank that the cheque was issued to a particular person and that was not returned also. He did not send any reply to the notice issued and he did not adduce any evidence regarding this aspect. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the revision petitioner had issued the cheque Crl.R.P.No.2131 of 2014 5 in discharge of the liability as claimed by the complainant relying on the presumptions available relying on the decision reported in **Rangappa v.Mohan** (2010 (2) KLT 682). Further the cheque was returned for the reason account closed. The Hon'ble Supreme Court has held that even if the cheque was returned as account closed, even then the complaint under Section 138 is maintainable. So under the circumstances, the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below do not call for interference. 8. As regards the sentence is concerned, the courts below had only imposed the cheque amount as fine with substantive sentence of imprisonment till the rising of court with default to undergo simple imprisonment for one month, which was confirmed by the appellate court. Maximum leniency has been shown by the court below in imposing the sentence, which cannot be said to be excessive, which warrants interference by this Court. 9. While this Court was about to dispose of the revision petition, the counsel for the revision petitioner sought three months time for payment of the amount. So Crl.R.P.No.2131 of 2014 6 the revision petitioner is granted time till 12.3.2015 to pay the amount. Till then, execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces receipt for the same before the concerned court, and that is being acknowledged by the complainant, then the lower court is directed to treat the same as substantial compliance of the directions of the court below as confirmed by this Court and record the same in the respective fine register as provided in in **Beena v. Balakrishnan Nair & another** (2010 (2) KHC 851) and **Sivankutty v. John Thomas & another** (2012 (4) KLT 21) and permit him to serve the substantive sentence of imprisonment till the rising of court. With the above directions and observations, this revision petition is dismissed. Office is directed to communicate this order to the concerned court at the earliest. ## **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.2131 of 2014 7