V.M. Hussan v. Praveen Raj and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939** ## **Crl.Rev.Pet.No. 472 of 2017 ()** ## **-------------------------------** ## **AGAINST THE JUDGMENT IN CRA 294/2015 of D.C. & SESSIONS COURT,KASARAGOD** **AGAINST THE JUDGMENT IN CC 178/2014 of J.M.F.C.-II, (ADDITIONAL MUNSIFF) KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------** **V.M.HUSSAN, AGED 55 YEARS,S/O.MOHAMMED,BEEF STALL.B.C.C.BUILDING, KUNJATHUR POST AND VILLAGE, MANJESUARA TALUK,KASARAGOD DISTRICT.** ## **BY ADVS.SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI** ## **RESPONDENTS/COMPLAINANT/STATE:** **--------------------------------------------** ## **1. PRAVEENRAJ,** **AGED 41 YEARS,S/O.BHASKARA,RESIDING AT PRAJWAL NILAYA,NEAR K.V.A.WATER TANK,CHOWKI,BADAJE, VLANJESWAR POST,MANJESHWARA TALUK,KASARAGOD DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.PUSHPARAJAN KODOTH R1 BY ADV. SRI.K.JAYESH MOHANKUMAR R1 BY ADV. SMT.VANDANA MENON** **R2 BY PUBLIC PROSECUTOR SAIGI JACOB PALETTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-062017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sab** ## **ALEXANDER THOMAS, J.** **------------------------------Crl. Rev. Petition No. 472 of 2017 ---------------------------------------------Dated this the 7[th] day of June, 2017** ## **ORDER** The petitioner is the accused in C.C No.178/2014 on the file of the Judicial First Class Magistrate (Additional Munsiff) Kasaragod, for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 instituted on the basis of the complaint filed by the first respondent herein. The trial court as per the impugned judgment dated 29.9.2015 had convicted the petitioner and sentenced to pay fine of Rs.5,00,000/- (Rupees five lakhs only)under Section 357(1) of Cr.P.C and in default of payment thereof, to undergo simple imprisonment for five months. Aggrieved by the said conviction and sentence, the petitioner had preferred Crl.Appeal No.294/2015 before the Sessions Court, Kasaragod. The appellate Sessions court concerned as per the impugned judgment dated 4.1.2017 confirmed the conviction and sentence, thereby dismissed the appeal. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. The gist of the prosecution case is that on account of **Crl. Rev. Petition No. 472 of 2017 2** the liability of Rs.5 lakhs owed by the accused to the complainant, the revision petitioner accused had issued Ext.P1 cheque dated 26.5.2014 for Rs.5 lakhs drawn from his account payable in favour of the complainant. The cheque when presented was dishonored which resulted in statutory demand notice in terms of Section 138 proviso (b) of the NI Act. Though the notice was duly served there was no reply thereto. After complying with the requisite statutory formalities in that regard, the complainant has initiated the present complaint which has led to the context of the trial in question. During the trial, the complainant was examined himself as PW1 and the prosecution were marked as Exts. P1 to P6 documents. The defence has not adduced any oral or documentary evidence. During the trial PW1 would depose that on 3.2.2014, the accused borrowed an amount of Rs.5 lakhs from the complainant. The purpose of borrowal was to discharge the dues owed to a jewellery shop while purchasing gold ornaments for his daughter's marriage. Thereafter for discharge of the said liability owed to the complainant, the accused had issued the present cheque for Rs.5 lakhs and the cheque when presented was dishonoured etc. During the cross examinaiton of PW1, it was not even **Crl. Rev. Petition No. 472 of 2017** **3** suggested by the defence as to how the cheque of the accused happened to be in the hands of the complainant. The complainant has deposed about his financial capacity to raise the above amount and that he could also raise the amount from Ext.P6 sale deed for which he received a consideration of Rs. 2,28,500/- and that the balance amount was raised by him. That the accused in the complaint are neighbours and that the complainant had graciously acceded to the request of the accused, his neighbour to advance an amount of Rs.5 lakh in order to enable the accused to pay off the said amount due from him to a jewellery shop from where the jewellery items were purchased for the marriage of the daughter of the accused. There was no effective cross examination of PW1 from the side of the defence for challenging the financial capacity of PW1 and both the courts below found no reason to disbelieve the oral testimony of PW1 regarding the entire transactions. Without making any attempt to put up a defence case at the time of cross examination of PW1, the accused has attempted to build up a case that one Ibrahim, friend of the accused had borrowed an amount of Rs.1,50,000/- from the complainant after pledging his property. In that transaction the blank signed cheque of the accused was given as a **Crl. Rev. Petition No. 472 of 2017** **4** security for the liability owed by said Sri.Ibrahim. Except raising such a case in section 313(1)(b) Cr.P.C, questioning process such a case was not even put up during the cross examination of PW1 and more importantly no clinching materials are brought forth to even remotely probablise the correctness of such an assertion. Therefore both the courts below found that the version of PW1 is bereft of any reliability whereas both the courts below found that the evidence of PW1 is credible and believable. In the light of these conclusive factual findings regarding the entire transactions, both the courts below found that the petitioner is liable to be convicted for the offence punishable under Section 138 of NI Act. These findings of facts regarding the conviction of the petitioner cannot be said to be initiated by the gross perversity or unreasonableness. No grave illegality or impropriety are seen committed in the rendering of the impugned judgments of both the courts below. The petitioner has not been able to establish any cogent grounds so as to enable this Court to invoke its revisional jurisdiction so as to interfere with the considered findings of facts regarding the conviction of the petitioner. 3. As regards the question of sentence it is seen that **Crl. Rev. Petition No. 472 of 2017 5** the cheque amount is Rs.5 Lakhs and the fine amount imposed is Rs. 5 lakhs. Since the cheque amount is Rs.5,00,000/- no illegality is seen committed by the courts below in that regard. However, the default clause of five months could be appropriately reduced to two months in the facts and circumstances of the case. However, taking into account of the facts and circumstances of the case, this Court is inclined to grant 5 months time to the accused to pay of the fine amount of Rs.5 lakhs. Accordingly, the following directions are issued. i. The impugned conviction and the sentence of fine imposed on the petitioner will stand confirmed. However, the default sentence will stand reduced to two months. ii. The petitioner is given five months time from 15.6.2017 to pay the above said amount of Rs.5 lakhs. iii. The petitioner will pay those amounts directly to the complainant in various installments within the above said time limit of 5 months. On such payment the complainant will give receipts so as to enable the accused to present the same to the trial court to satisfy the said court about those payments. Any such payments made by the **Crl. Rev. Petition No. 472 of 2017** **6** accused directly to the complainant will be treated as those amounts have been paid as fine and then disburse to the complainant as compensation under Section 357(1) of Cr.P.C. iv. The petitioner will appear before the trial court at 11.am on 18.11.2017 to satisfy the trial court about payment of the said fine amount of Rs.5 lakhs. v. On default of the petitioner to pay the said amount, he will have to undergo simple imprisonment for a period of two months. vi. Until 18.11.2017, all further coercive steps have been taken against the petitioner in pursuance of the execution of the impugned sentence will stand defered. vii. On default of the petitioner either to appear before the trial court on 18.11.2017 or in paying the above said amount as directed above, the trial court will be at liberty to proceed against the petitioner, in accordance with law. viii. It is also made clear that in case the petitioner has deposited any amount before the trial court in relation to this case, then the trial court will forthwith release that amount to the complainant on an application in that regard made **Crl. Rev. Petition No. 472 of 2017** **7** by the petitioner. If such an amount already been deposited by the accused, as stated above, then the accused need to pay to the complainant only the balance amount after deducting the deposit amount from the total amount of Rs. 5 lakhs. With these observations and directions, the revision petition is disposed of. Sd/- sab **ALEXANDER THOMAS, JUDGE**