Kerala High Court
M/S.Sarath Exports vs E.A.Subair on 19 September, 2011
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1616 of 2002(C)
1. M/S.SARATH EXPORTS,
... Petitioner
2. RAMACHANDRAN, S/O.NARAYANA MENON,
Vs
1. E.A.SUBAIR, DOOR NO.21/1702,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.T.K.PANKAJASHAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :19/09/2011
O R D E R
S.S.SATHEESACHANDRAN, J.
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Crl.R.P.NO.1616 OF 2002
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Dated this the 19th day of September, 2011
O R D E R
Revision petitioners are the accused in C.C.No.455 of 1998 on the file of the Judicial First Class Magistrate Court - II, Kochi. The 1st accused is a proprietary concern and the 2nd accused, its proprietor. They were prosecuted for the offences punishable under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', on a complaint filed by the 1st respondent. The accused has pleaded not guilty to the offence. Negativing that plea, on conviction, the 2nd accused was sentenced to undergo rigorous imprisonment for four months and to pay compensation of Rs.77,000/- with default term of simple imprisonment for two months by the learned Magistrate. In appeal, affirming the conviction, the learned Sessions Judge modified the substantive term of rigorous imprisonment to one of simple imprisonment retaining the period of imprisonment fixed as four months. Compensation awarded was reduced to Rs.75,000/- retaining the Crl.R.P.No.1616/2002 2 default term of simple imprisonment for two months. Feeling aggrieved, the accused have preferred this revision.
2. I heard the learned counsel for the revision petitioners and also the learned counsel for the 1st respondent/complainant. The learned counsel for the accused assailed the conviction concurrently rendered by the two courts below contending that the denial of execution of the cheque and also the transaction alleged by the complainant was not properly appreciated and that had resulted in miscarriage of justice. The accused had let in evidence to show that the cheque was given in blank form as a security and there was no due execution of the instrument, and it was not in discharge of any debt or liability due from them to the complainant. But both the courts below solely on the basis of the evidence of the complainant examined as PW1, which was hardly sufficient to prove the execution, founded a conviction against the accused overlooking the defence evidence tendered in the case. Reliance has been placed by the counsel in Gopan v. Tonny Varghese (2008 (1) KLT 257), Bhaskaran Nair v. Crl.R.P.No.1616/2002 3 Mohanan (2009 (3) KLT 580) and Santhi v. Mary Sherly (2011 (3) KLT 273) to contend that admission of the signature in the instrument - cheque - by the accused would not be sufficient to prove execution of that instrument, and if it is denied, it has to be proved by the complainant letting positive evidence, and on proof of such execution alone, the statutory presumptions are available that the instrument has been issued towards a debt or liability due to him from the accused. The accused has also shown by producing materials that he has no business operations in the place to which notice was sent on dishonour of the instrument by the complainant. When such notice sent was returned unclaimed, the complainant has to prove that it could not be served due to the culpable default or evasion of the accused. Then only, it could be considered that the refusal imputed would constitute actual receipt of the notice, submits the counsel relying on Syed Hamid Bafaky v. Moideen (1995 (2) KLJ 619). Even if the defence version canvassed by the accused is found to be improbable, that would not relieve the accused from proving their case and if only the Crl.R.P.No.1616/2002 4 evidence let by them is sufficient in proving the culpability of the accused, then alone the accused can be convicted of the offence is the submission of the counsel relying on Tika and others v. The State of U.P. (AIR 1974 SC 155). Complainant in the present case has not proved the execution of the cheque nor of the transaction relating to the cheque with the accused, when both of them were disputed, and as such, the conviction concurrently rendered by the courts below against the accused was unsustainable under law and it is liable to be set aside, submits the counsel.
3. Per contra, the learned counsel for the 1st respondent/complainant submitted that both the courts have found that the defence canvassed by the accused was totally devoid of any merit and the denial of execution and also the transaction by them was nothing but a ruse to wriggle out of the penal consequences arising on the dishonour of the cheque, which, admittedly arose from an account maintained by him. The counsel further submitted that it has been proved that the Crl.R.P.No.1616/2002 5 notice issued on dishonour was refused to be accepted, and, then, returned unclaimed. Both the courts have correctly appreciated the facts and circumstances involved to accept the case of the complainant and discard the defence version as unworthy of any merit to hold the accused guilty, is the submission of the counsel. The revision is devoid of any merit and it is liable to be dismissed, according to the counsel for the 1st respondent/complainant.
4. The 2nd accused as a proprietor of the 1st accused is carrying out fish exporting business. Towards supply of fish purchased from the complainant, Ext.P1 cheque for a sum of Rs.1,53,000/- was issued by the accused, was the case of the complainant. Cheque, on presentation, got dishonoured and statutory notice issued returning unclaimed, the complaint was filed to prosecute both the accused. The cheque was issued in blank form with signature alone when DW2 was kept under illegal confinement by the complainant was the case of the accused. DW2 had some transaction over the supply of fish by Crl.R.P.No.1616/2002 6 the complainant and since he did not pay the money, he was illegally detained by the complainant. DW2 thereupon informed over phone DW1, who, then, approached the accused, and he gave Ext.P1 cheque in blank form with signature alone as security to get release of DW2, was the defence version presented how Ext.P1 cheque, which arose from his account came to the custody of the complainant. DW2 admittedly was one of the suppliers of seafoods to the accused and DW1, the manager of the accused. The defence version so presented by the accused disputing the execution of the cheque and also that he had no transaction with the complainant was found to be totally devoid of any merit by the learned Magistrate after meticulously appreciating the evidence of DWs.1 to 3, among whom DW3 was the 2nd accused himself. The accused nor DWs.1 and 2 never complained of any illegal confinement of DW2 by the complainant or of any matters connected in relation to the cheque though all of them had a case that the cheque had been obtained by the complainant by illegal means. The evidence of DWs.1 and 2 show that they did not see the cheque, which was Crl.R.P.No.1616/2002 7 enclosed in a cover when it was stated to have been handed over to the complainant through DW1. The 2nd accused examined as DW3 had also not taken any step to show that other than the signature in Ext.P1 cheque, which, according to him, was issued in blank form, the other entries are written in a different hand. Contradictory versions spoken to by DWs.1 and 2 and also the 2nd accused examined as DW3 as to who asked for the issue of the cheque and to whom it was handed over, have been taken note of by the learned Magistrate to hold that the defence version canvassed by the accused was totally false and unworthy of any merit. The accused has produced the day book register to show that he has no transaction with the complainant, but, that has got only self serving evidence. Further more, the learned Magistrate has also taken note that the accused did not produce the relevant day book and receipt book relating to the month in which the seafoods were stated to have been supplied by the complainant. The learned Magistrate has found that the evidence of the complainant is trustworthy and reliable. The learned Sessions Judge, after reappraisal of the evidence, has Crl.R.P.No.1616/2002 8 concurred with that view. Merely because execution is denied by the drawer of the cheque it does not follow that corroboration is required from other source to accept the case of the complainant that the cheque was duly executed by the accused and handed over to him towards discharge of a debt or liability. The 1st accused is a proprietary concern and the 2nd accused its proprietor. Signature in Ext.P1 cheque is admitted by the 2nd accused. He has not taken any step to prove that the other entries made in Ext.P1 cheque were by a different hand though he contended that it was issued in blank form as a security. The defence version canvassed by the accused has been found to be false. The evidence of the complainant as PW1 that he had supplied seafoods to the accused and towards the liability thereunder, the cheque was issued by the accused was found credible and convincing. When such be the case, there is no merit in the challenge raised over the execution of the cheque. The decisions relied by the counsel in Gopan's case ((2008 (1) KLT 257), Bhaskaran Nair's case (2009 (3) KLT 580) and Santhi's case (2011 (3) KLT 273), stated supra, all of them, Crl.R.P.No.1616/2002 9 have no application to the facts of the case. There is also no merit in the challenge raised that notice returned as unclaimed would not constitute actual service of notice. The decision relied in Syed Hamid Bafaky's case (cited supra) is of no assistance to the accused, more particularly, in view of the decision of the apex court in Alavi Haji v. Muhammed (2007 (3) KLT 77 (SC)) wherein it has been held that where the defence is set up as to non-receipt of notice, the accused is bound to tender the cheque amount before the court within fifteen days of the receipt of the summons. Further more, in the present case, the learned Magistrate has taken note that the notice was issued in the address of the accused and his plea to the contrary even by examining DW4 and producing documents was totally false. It was also noticed that the address given in his vakalath and even in the agreement (Ext.P2) produced by him clearly showed that notice was sent to his address in Eda kochi. Suffice to state, the challenge raised that notice was not served was rightly and correctly turned down by both the courts where the materials tendered clearly demonstrated that the notice given on Crl.R.P.No.1616/2002 10 dishonour of the cheque was returned unclaimed indicating that there was actual service of notice. Reliance placed in Tika and others v. The State of U.P. (AIR 1974 SC 155) contending that the falsity of the defence will not help the prosecution to establish its own case, has no application as already pointed out, ignoring the defence and eschewing it from consideration as well, it could be seen that the complainant has established his case that the cheque had been issued in discharge of a debt or liability by the accused. In short, the challenges raised to assail the conviction by the accused are meritless and the concurrent finding of guilt entered against by the courts below to hold him guilty of the offence is unassailable.
5. Sentence imposed against the accused as modified by the learned Sessions Judge in appeal is imprisonment for four months and compensation of Rs.75,000/- to the complainant with default term of simple imprisonment for two months more. The amount covered by the cheque, the dishonour of which has led to prosecution of the accused is Rs.1,53,000/-. No reason has been Crl.R.P.No.1616/2002 11 set out by the trial court nor the appellate court to limit the compensation payable to the complainant much less than the sum covered by the cheque, even after taking note that the contentions raised by the accused are meritless. Though the facts presented in the case may justify imposition of a prison term against the 2nd accused, who had raised false and baseless contentions, still, having regard to the fact that his prosecution is for the offence over a dishonoured cheque, I find, substantive term of imprisonment imposed against him can be modified and limited with suitable enhancement in awarding compensation fixing adequate default term of imprisonment thereof. Prosecution of the accused over the dishonoured cheque has commenced in 1998, and despite the conviction entered concurrently by two courts below for the offence imputed, he has continued the litigation raising totally false contentions, of course, has to be taken into account in fixing and awarding compensation to the complainant.
6. Affirming the conviction of the accused, sentence Crl.R.P.No.1616/2002 12 imposed against him is modified directing him to undergo imprisonment for a day, till the rising of the court, and to pay compensation of Rs.2,00,000/- with default term of simple imprisonment for four months. Accused is directed to appear before the Judicial First Class Magistrate Court - II, Kochi on 20.10.2011 to serve out the imprisonment for a day and to report payment of the compensation. The learned Magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance. In default of his appearance and non-payment of the compensation, the Magistrate shall execute the sentence taking appropriate steps in accordance with law.
With the above direction, the revision is disposed of.
S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J.
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Crl.R.P.NO.1616 OF 2002
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O R D E R 19th September, 2011 Crl.R.P.No.1616/2002 14