Kerala High Court
Augustine John vs State Of Kerala on 17 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941
Crl.Rev.Pet.No.1409 OF 2019
AGAINST THE JUDGMENT IN CRA 189/2016 OF II ADDITIONAL SESSIONS
COURT,TRIVANDRUM
AGAINST THE JUDGMENT IN ST 40/2014 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -X, TRIVANDRUM
REVISION PETITIONER/APPELLANT/ACCUSED:
AUGUSTINE JOHN
AGED 47 YEARS
S/O.VARKEY JOHN, KOCHU PARAMBIL, GRA, K-58,
SREEKARYAM P.O., THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.P.ANOOP (MULAVANA)
RESPONDENT/RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2 AJAYAKUMAR,
S/O.MANAYATHU VIKRAMAN PILLAI, BHASI NAGAR,
KOCHULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM
DISTRICT-695 011.
R2 BY ADV. SRI.C.R.SURESH KUMAR
R2 BY ADV. SMT.AMRUTHA SURESH
R1 BY SRI B JAYASURYA-SR PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
15-01-2020, THE COURT ON 17-01-2020 PASSED THE FOLLOWING:
Crl.Rev.Pet.No.1409 OF 2019
R. NARAYANA PISHARADI, J
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Crl.R.P.No. 1409 of 2019
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Dated this the 17th day of January, 2020
ORDER
The revision petitioner is the accused in the case S.T No. 40/2014 on the file of the Court of the Judicial First Class Magistrate- X, Thiruvananthapuram.
2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of one month and directed him to pay an amount of Rs.4,20,000/- as compensation to the complainant and also ordered that, in default of payment of compensation, he shall undergo simple imprisonment for a period of one month.
3. The petitioner filed Crl.A.No. 189/2016 before the Court of Session, Thiruvananthapuram challenging the order of conviction and Crl.Rev.Pet.No.1409 OF 2019 sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence and dismissed the appeal.
4. Aggrieved by the concurrent findings of guilty, conviction and sentence passed against him by the courts below, the accused in the case has filed this revision petition.
5. Heard the learned counsel for the revision petitioner and the second respondent/complainant.
6. The case of the complainant is as follows: The complainant had paid a total amount of Rs.4,20,000/- to the accused during the period from March, 2012 to June 2012. He paid the amount to the accused because the accused had promised that he would arrange the job of a teacher in a school for the son of the brother-in-law of the complainant. The accused did not arrange any job as promised by him. The complainant contacted the accused in the month of October, 2012 and then the accused promised that he would return the entire amount on or before the date 30.11.2012. On 01.12.2012, when the complainant demanded the accused to repay the amount, the accused issued him Exts.P1 and P2 cheques for Rs.2,10,000/- each, in discharge of the liability. The complainant presented the cheques in the bank. They were dishonoured for the reason that there was no Crl.Rev.Pet.No.1409 OF 2019 sufficient amount in the account of the accused. The complainant sent a notice to the accused demanding payment of the amount of the cheques. The accused received the notice. He did not send any reply. He did not pay the amount of the cheques.
7. During the trial of the case, the complainant got himself examined as PW1 and two other witnesses were examined on his side as PW2 and PW3. Exts.P1 to P9 documents were also marked on his side. The accused got himself examined as DW1.
8. When examined as PW1, the complainant gave evidence regarding the circumstances under which he paid the amount of Rs.4,20,000/- to the accused. He also gave evidence that the accused signed the cheques in his presence and that the accused gave him the cheques in discharge of the liability.
9. PW2 and PW3 were examined by the complainant to prove that the accused executed the cheques and gave them to the complainant. Their evidence corroborates the evidence of PW1 regarding the execution of the cheques and delivery of the same to the complainant by the accused.
10. Execution of the cheques by the accused stands proved by the evidence of PW1 to PW3. Then, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to Crl.Rev.Pet.No.1409 OF 2019 rebut the presumption under Section 139 of the Act.
11. The plea of the accused was that he was seeing the complainant and the witnesses for the first time in the court and that he had no prior acquaintance with them. During the cross- examination of PW1, a suggestion was made to PW1 that he had managed to obtain the cheques from one Shibu, who had received the cheques from the accused. However, when examined as DW1, the accused gave evidence that he got financial assistance from his friend Lokesh and that he had entrusted the cheques to Lokesh but he does not know how the cheques came to the hands of the complainant.
12. The accused has no consistent plea as to how the cheques, which bear his signature, happened to be in the possession of the complainant. The evidence given by him as DW1 cannot be believed for this reason alone. On the other hand, there is no reason to disbelieve the evidence of PW1 regarding the transaction and the issuing of the cheques by the accused in discharge of the liability.
13. The accused had received the lawyer notice sent to him by the complainant demanding payment of the amount of the cheques. The accused did not send any reply to the statutory notice. If the complainant was a total stranger to him and if he had no transaction with the complainant and if he did not owe any amount to the Crl.Rev.Pet.No.1409 OF 2019 complainant, the accused would have definitely sent a reply to the statutory notice. He would not have remained silent and inactive on receiving a lawyer notice sent by a stranger demanding an amount of Rs.4,20,000/- from him. The very fact that he did not send any reply to the statutory notice is sufficient to find that the version of the complainant is true (See Rangappa v. Mohan: AIR 2010 SC 1898).
14. The courts below have properly analysed the evidence in the case and come to the right conclusion. Learned counsel for the petitioner has not pointed out any illegality, infirmity or perversity in the appreciation of evidence by the courts below. There is no sufficient ground to interfere with the findings entered against the petitioner by the courts below, in exercise of the revisional jurisdiction of this Court. Conviction of the petitioner for the offence under Section 138 of the Act is only to be confirmed.
15. The trial court has sentenced the petitioner/accused to undergo simple imprisonment for a period of one month and directed him to pay an amount of Rs.4,20,000/- as compensation to the complainant. The appellate court has confirmed the sentence imposed on the petitioner by the trial court. Considering the facts and circumstances of the case, I find that substantive sentence of imprisonment is not required to be imposed on the petitioner. At the Crl.Rev.Pet.No.1409 OF 2019 same time, considering the lapse of period after issuing of the cheque by the accused, the amount of compensation payable by the accused to the complainant has to be slightly increased. Since the substantive sentence of imprisonment imposed on the accused by the trial court is proposed to be set aside, it would not result in enhancement of the sentence imposed on him by the trial court.
16. In the result, the revision petition is allowed in part. The sentence of simple imprisonment for a period of one month imposed on the petitioner by the trial court, which stands affirmed by the appellate court, is set aside. The petitioner/accused is sentenced to pay a fine of Rs.4,50,000/- (Rupees four lakhs fifty thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of one month. If the fine amount is realised, it shall be paid to the complainant as compensation. The petitioner is granted a period of four months from today to remit the fine amount in the trial court.
Sd/-R. NARAYANA PISHARADI JUDGE lsn