Kerala High Court
Mohanan vs Unknown on 30 January, 2012
Author: P.Q. Barkath Ali
Bench: P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI
THURSDAY, THE 22ND DAY OF MARCH 2012/2ND CHAITHRA 1934
Crl.Rev.Pet.No. 378 of 2005 (B)
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CRA.158/2001 of IST ADDITIONAL SESSEINS JUDGES, TRIVANDRUM
CC.91/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ATTINGAL
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REVISION PETITIONER(S):
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MOHANAN, S/O.KRISHNAN,
KULIRNEETTIKARA VEEDU, THEKKEVILA MURI
PALLIPPURAM VILLAGE, KANIYAPURAM, TRIVANDRUM.
BY ADVS.SRI.M.DINESH
SRI.BASANT BALAJI
COMPLAINANT(S):
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1. A.C.R.DAS, S/O.APPUKUTTAN,
SUDHARMA, KANTAVILA DESOM, -- died --
KADINAMKULAM VILLAGE
TRIVANDRUM.
2. STATE OF KERALA, REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
* ADDL.R3 TO R5 ARE IMPLEADED AS PER ORDER DATED 30.01.2012 IN Crl.MA
10144/11 IN Crl.RP 378/05
*3. SYLADAS, W/O LATE A.C.R. DAS, AGED 51 YEARS
SUDHARMA, KANTAVILA DESOM
KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM
*4 DHANU, S/O LATE A.C.R. DAS, AGED 28 YEARS,
SUDHARMA, KANTAVILA DESOM, KADINAMKULAM VILLAGE
THIRUVANANTHAPURAM
*5 DHANYA, D/O LATE A.C.R. DAS, AGED 25 YEARS,
SUDHARMA, KANTAVILA DESOM, KADINAMKULAM VILLAGE,
THIRUVANANTHAPURAM
BY ADV. SRI.P.A.AHAMMED
BY ADV. SRI.D.PEETHAMBARAN
BY PUBLIC PROSECUTOR SRI. NOUSHAD THOTTATHIL
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
22-03-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sd
P.Q. BARKATH ALI, J
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Crl. R.P. No. 378 of 2005
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Dated this the 22nd day of March, 2012
O R D E R
The revision petitioner is the accused in C.C.No.91/1999 on the file of Judicial First Class Magistrate Court-2, Attingal, and appellant in Crl. Appeal No.158/2001 of First Additional SessionS Court, Trivandrum.
2. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 5,000/- to the complainant, in default to undergo simple imprisonment for three months by the learned Magistrate by judgment dated March 20, 2001. The fine amount, if realised, was ordered to be paid to PW1 the complainant as compensation. On appeal by the accused learned Sessions Judge confirmed his conviction, but modified his sentence to simple imprisonment for three months and to pay a fine of Rs.5000/- in default to undergo simple imprisonment for a further period of three months by judgment dated September 07, Crl. R.P. No. 378 of 2002 2 2004. The accused has now come up in revision challenging his conviction and sentence.
3. The case of the revision first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint in brief is this:- The accused borrowed Rs.1,50,000/- from him on June 20, 1998 and to discharge that liability issued two cheques Exts.P1 and P2 for Rs. 1,00,000/- and 50,000/- respectively drawn on the Kaniyapuram Branch of Central Bank of India. The cheques when presented for collection were returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. Inspite of the notice Ext. P6 dated November 19, 1998 , the accused did not re-pay the amount. Therefore, the complainant filed the complaint under Section 138 of Negotiable Instruments Act before the Lower Court.
4. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. The complainant besides himself Crl. R.P. No. 378 of 2002 3 as PW1 examined PWs and 3 and produced Ext. P1 to P8 before the trial Court. When questioned under Section 313 Cr.P.C. by the learned Magistrate he denied the entire transaction. No defence evidence was adduced.
5. On an appreciation of evidence the learned Magistrate found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act and convicted him thereunder and sentenced him as aforesaid. On appeal by the accused the learned Sessions Judge confirmed his conviction, but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence.
6. Heard the counsel for the revision petitioner/accused and the revision first respondent, complainant. During the pendency of the appeal first respondent/ complainant died. His legal heirs are impleaded as additional respondents 3 to 5.
7. The following points arise for consideration:-
(1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act can be sustained? (2) Whether the sentence imposed is excessive or unduly harsh?
8. The counsel for the revision petitioner/accused argued Crl. R.P. No. 378 of 2002 4 that in respect of the same transaction complainant has filed O.S. 114/98 before the Sub Court, Attingal which was dismissed and that therefore in this case accused has to be acquitted. On the other hand counsel for the respondents 3 to 5 supported the judgments of both the courts below.
9. The complainant testified as PW1 in terms of complaint before the trial court. He produced Exts. P1 to P8. PW2 is the postman who served a notice to the accused and PW3 is the witness to the transaction. The learned Magistrate accepted the case of the complainant and found the accused guilty under Section 138 of Negotiable Instruments Act. The learned Sessions Judge confirmed his conviction.
10. During the pendancy of the appeal before the lower appellate court the accused produced the certified copy of the judgment in O.S. No.114/1998 of Sub Court, Attingal. It was with respect to the same transaction. The said suit was dismissed on the ground that the cheque was not supported by consideration and execution of the same was not proved. The lower appellate court, found that decision in the said civil suit cannot be taken into account for coming into a definite conclusion in criminal Crl. R.P. No. 378 of 2002 5 proceedings and the criminal case has to be decided on the basis of the evidence adduced there in and therefore did not accept the finding in the said civil suit. The above reasoning of the lower appellate court appears to be not correct.
11. A Single Bench of this court in Mohandas Vs Abdul Azzez (2011(3) KHC 41) relying on a decision of the Apex Court in Premsankar Vs Director of Police and other ( AIR 2002 SC 3372) held that the finding of the civil court that cheque is not supported by consideration would be relevant notwithstanding the fact that the criminal court has passed an order of conviction against the accused. The principles laid down in the above decision squarely apply to the fact of the present case. Admittedly, the said civil suit is with respect to the same transaction. It is clearly found therein that Exts. P1 and P2 cheques are not supported by consideration and that the complainant has not proved the transaction in question. The said findings are binding on the complaint in the present case also. That being so it has to be held that cheques Exts. P1 and P2 are not supported by consideration. Consequently the accused is found not guilty of the offence punishable under Section 138 of Crl. R.P. No. 378 of 2002 6 Negotiable Instruments Act. Therefore, revision petition has to be allowed and conviction of the accused by the trial court which was confirmed in appeal and sentence imposed against him by the trial court which is modified by the lower appellate court have to be set aside and accused has to be acquitted.
11. In the result revision petition is allowed. The conviction of the revision petitioner by the trial court which is confirmed in an appeal by the lower appellate court and the sentence imposed against him by the trial court which is modified by the lower appellate court are set aside. The Revision petitioner/ accused is found not guilty of the offence punishable under Section 138 of Negotiable Instruments Act and acquitted under Section 255(1) of Cr.pc. His bail bonds are canclled.
P.Q. BARKATH ALI, JUDGE.
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