Kerala High Court
M.N.Sajeevan vs K.V.Kuriachan on 17 July, 2013
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 21ST DAY OF OCTOBER 2014/29TH ASWINA, 1936
Crl.Rev.Pet.No. 1697 of 2014 ()
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AGAINST THE JUDGMENT IN CRL.A.NO. 316/2011
OF ADDL.DISTRICT & SESSIONS COURT, N. PARAVUR DATED 17-07-2013
AGAINST THE JUDGMENT IN CC 130/2009
OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, PERUMBAVOOR
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REVISION PETITIONER/APPELLANT/ACCUSED :
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M.N.SAJEEVAN
AGED 45 YEARS, S/O.NARAYANAN,
MATTAMANAYIL HOUSE, PANIPRA P.O.
BY ADV. SRI.K.SUNILKUMAR
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :
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1. K.V.KURIACHAN, AGED 49 YEARS
S/O.VARGHESE, KATTARUKUDY HOUSE, RAYAMANGALAM P.O.
ERNAKULAM-683 545.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY ADVS. SRI.JAICE JACOB
SMT.OORMILA K.RAJAN
SRI.S.SARATH PRASAD
R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 21-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
K. Ramakrishnan, J.
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Crl.R.P.No.1697 of 2014
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Dated this, the 21st day of October, 2014.
O R D E R
Accused in C.C.No.130/09 on the file of the Judicial First Class Magistrate Court, No-II, Perumbavoor is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act.(hereinafter called 'the Act')
3. The case of the complainant in the complaint was that the accused borrowed a sum of Rs.2,00,000/-and in discharge of that liability, he had issued Ext.P1 Cheque in favour of the complainant. The cheque when presented was dishonoured for the reason 'funds insufficient' evidenced by Ext.P2 dishonour memo and the same was intimated to the complainant by his banker vide Ext.P3 intimation letter dated 04.08.2008. The complainant issued Ext.P4 notice evidenced by Ext.P5 postal receipt and the same was returned with endorsement 'unclaimed'. The accused had not paid the amount. So, he had committed the offence punishable under Crl.R.P.No.1697 of 2014 : 2 : Section 138 of the Act. Hence the complainant.
4. When the accused appeared before the court below, the particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of complainant, complainant himself was examined as PW1 and Exts.P1 to P6 were marked on his side. After closure of the complainant's evidence, the accused was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that the complainant was working as a conductor under him and he entrusted signed cheques to the complainant for the purpose of handing over the same to the finance company in respect of the hire amounts payable for his bus which he had misused and filed the complaint. No defence evidence was adduced on his side to prove this fact. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay the cheque of Rs.2,00,000/- as compensation to the complainant in default to undergo simple Crl.R.P.No.1697 of 2014 : 3 : imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.316/11 before the Sessions Court, Ernakulam which was made over to Additional Sessions Court, North Paravur for disposal and the learned Additional Sessions Judge by the impugned judgment dated 17.07.2013 allowed the appeal in part confirming the order of conviction and the compensation with default sentence, but, reduced the substantive sentence to imprisonment till rising of court. This is being challenged by the petitioner by filing this revision petition.
5. Since the first respondent had appeared in the delay condonation application and proposed to appear in the revision also, this court felt that the revision can be admitted and disposed of today itself after hearing both sides on merit. So, the revision petition is admitted and heard the Counsel for the revision petitioner, first respondent and the learned Public Prosecutor appearing for the second respondent.
6. The Counsel for the revision petitioner submitted that the case of the complainant is not believable because he was working as a conductor and he has no means to raise the Crl.R.P.No.1697 of 2014 : 4 : amount. Further, the cheques given by him while he was working under him as conductor to be entrusted to the finance company has been misused is more probable and thereby, he had rebutted the presumption. Courts below were not justified in convicting the revision petitioner for the offence under Section 138 of the Act.
7. On the other hand, the Counsel for the first respondent submitted that no acceptable evidence has been adduced on the side of the revision petitioner to rebut presumption and the courts below were perfectly justified in convicting for the said offence. The learned Public Prosecutor also supported the case of the first respondent.
8. The case of the complainant in the complaint was that accused borrowed a sum of Rs.2,00,000/- and issued Ext.P1 cheque in discharge of that liability. The case of the revision is one of total denial. His case was that the complainant was working as a conductor under him and at that time, he had entrusted signed cheques to be entrusted to the finance company and when he sold the bus, the complainant left the service, misusing one of the cheques, he filed the complaint. In order to prove the case of the complainant, Crl.R.P.No.1697 of 2014 : 5 : complainant himself was examined as PW1 and he deposed in support of his case in the complaint. He denied the suggestion that he was working as a conductor under the accused at any time. It is not believable for moment that the cheques entrusted to him while he was working as a conductor were misused after he left the employment as he had not taken any action against the respondent - complainant for misusing his cheque. Further, the notice sent to him was returned as unclaimed. In spite of intimation given, he did not receive the notice and send any reply to the same as well. So, under the circumstances, in the absence of any evidence adduced on the side of the accused to prove his case, the courts below were perfectly justified in relying on the evidence of PW1 and also the presumptions available under Section 118 and 139 of the Negotiable Instruments Act and rightly came to the conclusion that the accused committed the offence punishable under Section 138 of the Act and the concurrent finding of the court below on fact do not require any interference by this court as there no infirmity or illegality committed by the courts below in this regard.
9. As regards the sentence is concerned, though the Crl.R.P.No.1697 of 2014 : 6 : trial court has sentenced to undergo imprisonment for three months apart from awarding the cheque amount as compensation with default sentence, the substantive sentence of three months simple imprisonment has been reduced to imprisonment till rising of court by the appellate court. So, maximum leniency has been shown by the appellate court in awarding the sentence as well. I don't find any reason to interfere with the sentence as well as it cannot be said to harsh or excessive.
10. Before disposing of the case, the Counsel for the revision petitioner submitted that, if eight months time is granted, he will be able to pay the amount. This was opposed by the Counsel for the first respondent as the case is of the 2009. Considering the circumstances and also the amount involved, this court feels that six months time can be granted for payment of the amount. So, revision petitioner is granted time till 21.04.2015 to pay the amount or deposit the amount before the court below. Till then, the execution of sentence against the revision petitioner is directed to be kept in abeyance. If the amount is paid directly to the complainant and it was satisfied before the court below by producing Crl.R.P.No.1697 of 2014 : 7 : receipt and getting it acknowledged by the complainant before the court below, then, court below is directed to record the same as substantial compliance and allow the petitioner to serve the imprisonment till rising of court awarded by the appellate court and confirmed by this court.
With the above direction and observation, the revision petition is dismissed.
Office is directed to communicate this order to the court below at the earliest.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge