Kerala High Court
M.C.George vs K.T.Nadeshan on 31 August, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939
Crl.Rev.Pet.No. 1070 of 2017 ()
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CRL.A 24/2015 OF ADDITIONAL SESSIONS COURT - VIII, ERNAKULAM.
CC 5185/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - IV,
ERNAKULAM.
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REVISION PETITIONER/APPELLANT/ACCUSED:
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M.C.GEORGE, AGED 55,
SON OF MR.CHACKO, RESIDING AT
VACHANAM HOUSE, EROOR P.O.,
TRIPUNITHURA, ERNAKULAM DISTRICT, PIN-6823062.
BY ADVS.SRI.SHAJI CHIRAYATH
SMT.JIJI M. VARKEY
SMT.SAVITHA GANAPATHIYATAN
SRI.M.M.SHAJAHAN
RESPONDENTS/RESPONDENTS/COMPLAINANT:
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1. K.T.NADESHAN, AGED 56,
SON OF MR.THAYIKKUTTY, ARIPARAYIL HOUSE,
MARAD P.O., ERNAKULAM, PROPRIETOR,
SNF SINTEX & ALUMINIUM, KARINGACHIRA,
HILL PALACE ROAD,
ERNAKULAM DISTRICT, PIN-682301.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM DISTRICT.
R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 31-08-2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
mbr/
C.R.
ALEXANDER THOMAS, J.
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Crl.R.P.No.1070 of 2017
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Dated this the 31st day of August, 2017
O R D E R
The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.5185 of 2010 on the file of the Judicial First Class Magistrate Court-IV, Ernakulam, instituted on the basis of a complaint filed by the first respondent herein.
2. Exhibit P2 dishonoured cheque dated 10.10.2007 is for Rs.94,350/-. The trial court, as per the impugned judgment rendered on 31.7.2014, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment till the rising of the court and to pay fine of Rs.94,350/- (cheque amount) and in default thereof, to undergo simple imprisonment for a period of three months and further that the fine amount so realised was directed to be released to the complainant as compensation as per Section 357(1) of the Cr.P.C. Aggrieved thereby the petitioner had preferred Crl.Appeal No.24 of 2015 before the court of the Additional Sessions Judge-VIII, Ernakulam, who by the impugned judgment rendered on 23.6.2017 has dismissed the appeal and has thereby confirmed the impugned conviction and sentence in this case. It is aggrieved by the abovesaid concurrent Crl.R.P.No.1070/17 ::2::
verdicts of both the courts the below that the petitioner has preferred the instant Crl.Revision Petition by taking recourse to the remedies conferred under Section 397 and Section 401 of the Code of Criminal Procedure, 1973.
3. Heard Sri.Shaji Chirayath, learned counsel appearing for the revision petitioner/accused, and Sri.Jestin Mathew, learned prosecutor appearing for the second respondent/State.
4. In the nature of the orders proposed to be passed in this revision petition, notice to R1/complainant will stand dispensed with.
5. The gist of the case of the complainant is that the complainant and the accused are well known to each other and that on 9.11.2006, the accused had borrowed an amount of Rs.85,000/- from the complainant. The said amount was handed over to the accused by a cash cheque bearing No.054807 dated 9.11.2006 drawn from the account of the complainant maintained in the State Bank of India, Tripunithura Branch. Further that the accused had encashed the said cheque on 9.11.2006 and had received cash from the Bank and that the accused had also executed a promissory note on the very same day (9.11.2006), promising to pay the said amount of Rs.85,000/- with interest thereon @12% per annum. When the said amount was demanded by the complainant, the accused had issued Exhibit P2 cheque dated 10.10.2007 for a sum of Rs.94,350/- in discharge of the Crl.R.P.No.1070/17 ::3::
said liability. The amount covered by the said cheque was reflecting the principal amount of Rs.85,000/- along with interest thereon. The cheque when presented resulted in dishonour and after following the requisite formalities, the complainant had issued statutory demand notice to the petitioner. No reply notice was sent by the accused to the statutory demand notice and therefore, the complainant had filed the instant complaint which led to the conduct of trial.
6. During trial, the complainant has examined PW1 and PW2 and has marked Exhibits-P1 to P8 documents. The defence has not adduced any oral or documentary evidence. The complainant has examined himself as PW1.
7. PW1 has broadly deposed in tune with the contents of his complaint. PW2 has deposed that he had seen the handing over of the cash cheque dated 9.11.2006 by the complainant to the accused which led to the initial borrowal transaction. Exhibit-P8 is the statement of accounts of the proprietary concern of the complainant maintained with the State Bank of India, Tripunithura Branch, for the period from 25.10.2006 to 9.11.2006. Both the courts below have found that Exhibit-P8 corroborates the complainant's version that he has given a cash cheque to the accused for an amount of Rs.85,000/-. Exhibit-P8 has not been challenged by the accused while cross examining PW1.
The defence has not raised any suggestion that he is not the "George"
Crl.R.P.No.1070/17 ::4::
mentioned in Exhibit-P8. Further Exhibit-P1 promissory note dated 9.11.2006 mentions about the cheque number of the abovesaid cash cheque. The version of the defence while cross examining PW1 was to the effect that Exhibit-P2 cheque was given as a blank signed cheque by the accused for some other transactions with the complainant and that Exhibit-P1 promissory note is in relation to the transaction other than the one alleged in the complaint. Except raising this suggestion, the defence had not brought out any clinching factual circumstances in the evidence at least during the cross examination of PW1 to even remotely sustain the said defence suggestions. That apart, the defence has not also endeavoured to adduce any independent evidence to fortify their suggestions. Therefore, the said pleas taken up by the defence have remained only in the realm of suggestions. Both the courts below have found that the evidence tendered by PW1 and PW2 is broadly believable and credible and that the complainant has proved his case. No serious dispute has been raised regarding the findings of the courts below that the complainant has satisfied the requisite formalities for institution of the complaint. Therefore, the contentions of the accused regarding these aspects are not tenable and the findings made by the courts below cannot be said to be tainted by perversity or illegality. Apart from these, the main contention urged by Sri.Shaji Chirayath, learned counsel appearing for the petitioner/accused, is to the effect that Crl.R.P.No.1070/17 ::5::
Exhibit-P2 cheque bears the typewritten date as "10/10/207" and that the date shown in Exhibit-P2 cheque is invalid and that therefore, it will not satisfy the definition of a cheque as envisaged in Section 6 of the Negotiable Instruments Act and that therefore, the offence under Section 138 of the Negotiable Instruments Act is not attracted in the facts of this case.
8. Both the courts below have found that the said objection has not been raised at any point of time. The petitioner has not cared to give any reply notice to Exhibit-P5 statutory demand notice issued by the complainant. That apart the defence has not confronted PW1 during cross examination, regarding the said contention that the cheque is invalid for showing the date in the abovesaid manner. The petitioner has placed reliance on Section 66 of the Negotiable Instruments Act, 1881, which reads as follows :
"66. Presentment for payment of instrument payable after date or sight:-A promissory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity."
Further it is also urged by Sri.Shaji Chirayath, learned counsel appearing for the revision petitioner/accused, that clause (a) of proviso to Section 138 mandates that nothing contained in Section 138 will apply unless the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of Crl.R.P.No.1070/17 ::6::
validity whichever is earlier. In this regard it is pointed out that now the Reserve Bank of India has issued notification dated 4.11.2011 made effective from 1.4.2012 that the validity period of the cheque would henceforth be limited to three months. Accordingly, it is argued that unless there is a valid date shown in the cheque, it will not fulfill the requirements of the proviso (a) of Section 138 or that contained in the provisions of Section 66 of the Negotiable Instruments Act. Learned counsel for the petitioner also placed reliance on Section 77 of the Negotiable Instruments Act, which reads as follows :
"77. Liability of Banker for negligently dealing with bill presented for payment:- When a bill of exchange, accepted payable at a specified Bank, has been duly presented there for payment and dishonoured, if the Banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss."
Accordingly, it is contended that acceptance of such an invalid cheque by the Banker would amount to negligence and that the Banker would be liable by virtue of Section 77 of the Negotiable Instruments Act.
9. Section 6 of the Negotiable Instruments Act defines cheque and Section 5 thereof defines bill of exchange and the said provisions read as follows :
"6. Cheque : - A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I:-For the purposes of this Section, the expressions -
(a) "a cheque in the electronic form" means a cheque drawn in electronic form by using any computer resource and Crl.R.P.No.1070/17 ::7::
signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be ;
(b) "a truncated cheque" means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the Bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.
Explanation II.- For the purposes of this Section, the expression "clearing house" means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.
Explanation III.- For the purposes of this Section, the expressions "asymmetric crypto system", "computer resource", "digital signature", "electronic form" and "electronic signature"
shall have the same meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000)."
"5. Bill of exchange : A "bill of exchange" is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.
A promise or order to pay is not "conditional", within the meaning of this Section and Section 4, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happened, although the time of its happening may be uncertain.
The sum payable may be "certain", within the meaning of this Section and Section 4, although it includes future interest or is payable at an indicated rate of exchange, or is according to the course of exchange, and although the instrument provides that, on default of payment of an instalment, the balance unpaid shall become due.
The person to whom it is clear that the direction is given or that payment is to be made may be a "certain person", within the meaning of this Section and Section 4, although he is mis- named or designated by description only."
Going by the definitions of Section 6 and Section 5 of the Act, a cheque is a Bill of Exchange drawn on a specified Banker and not expressed to Crl.R.P.No.1070/17 ::8::
be payable otherwise than on the Bank. A Bill of Exchange is defined to be an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument, etc. It is true that the date shown in the cheque has a great amount of significance as regards its validity and presentment, etc. But, it is to be noted that a cheque is a Bill of Exchange drawn on a specified Banker and not expressed to be payable otherwise than on demand and a Bill of Exchange is an instrument in writing containing an unconditional order, signed by the maker, etc. as mentioned hereinabove. When a cheque is issued by a drawer from an account maintained by him and the same is presented for encashment before the drawee Bank, if the drawee Bank has any valid objection regarding the validity of the date shown in the cheque, then certainly the drawee Bank is entitled to return the cheque and in such a case the payee/holder in due course as the case may be will be at liberty to get the cheque corrected by the drawer with his signature endorsed in the correction and in such a case, it could re-presented before the drawee Bank after curing such a defect. Or in the alternative, the payee/holder could return back the cheque in such a situation to the drawer, so as to secure another valid cheque from him for presentation before the drawer Bank. Such a scenario will arise only if the drawee Bank raises such an Crl.R.P.No.1070/17 ::9::
objection based on tenable grounds. Of course, if it is a patent error and the Banker is acting on such a patently invalid cheque, then certainly the Banker would be liable for negligence as envisaged in Section 77 of the Negotiable Instruments Act. But in a case where the drawee Bank or an authorised official of the drawee Bank, taking into account the ordinary course of human affairs, is of the view that the date of cheque could only be construed as a valid one and the said opinion formed by the authorised official of the drawee Bank is well-founded going by the norms of the Banker as well as the ordinary course of human affairs to be evaluated on the basis of matters of commonsense, etc., then it cannot be said that the Banker has acted negligently. These are all aspects which all depend upon the facts and circumstances of the particular case concerned. The accused has never raised such a dispute at any point of time either on receipt of the statutory demand notice or crucially during the cross examination of PW1 to challenge and confront his evidence in chief examination about the execution of the cheque, its presentment and dishonour. If the accused had objected to the validity of the cheque during cross examination of PW1, then the complainant would have been duly alerted and he could have easily adduced evidence from the drawee Bank concerned about the aspect as to whether they have treated the date of the cheque as a valid one or not. In the instant case, the cheque has been returned Crl.R.P.No.1070/17 ::10::
solely on the ground of 'insufficiency of funds' and the drawee Bank has not raised any objection regarding the validity of the date component in the cheque. Therefore, in the light of the peculiar facts of this case, it can only be construed that when the cheque was presented before the drawee Bank (State Bank of India, Tripunithura) on 17.10.2007 as evidenced from Exhibit-P4, the said Bank had treated the date in the cheque as 10.10.2007. This is the only conclusion that can be arrived at by any court construing the special facts and circumstances of this case. Just as the accused is entitled to be appraised about the nature and details of the gravamen of the allegations raised in a complaint, a complainant should also be alerted about the factual objections of the accused at least during the cross examination of the complainant. In the absence of such a course of action, the complainant cannot be blamed for not having adduced any evidence of the competent officials of the drawee Bank concerned in this case. Moreover, in the instant case, it appears that the cheque was processed manually and not through the electronic process.
10. Therefore, this Court is constrained to take the view that the concurrent views taken by both the courts below that the cheque is a valid one cannot be said to be vitiated by gross perversity or illegality. In this view of the matter, the abovesaid contention raised by the petitioner is liable to be overruled and it is accordingly so ordered. In the light of Crl.R.P.No.1070/17 ::11::
these aspects, this Court sitting in revision will not be justified in interfering with the concurrent findings arrived at by both the courts below regarding the conviction of the petitioner. As regards the question of sentence, it is seen that the trial court has only imposed the sentence of imprisonment till the rising of the court and fine of Rs.94,350/-, which is the cheque amount. The appellate court has also concurred with the said sentence. The said sentence cannot be said to be excessive or disproportionate. However, the default sentence clause of three months could be appropriately reduced to one month considering the fact that the fine/compensation of the cheque amount is only Rs.94,350/-.
11. Sri.Shaji Chirayath, learned counsel appearing for the petitioner/accused, submits that in case this Court is so inclined to confirm the impugned conviction and sentence in this case, then the petitioner may be granted six months' time to remit the fine amount before the trial court. It is pointed out that the petitioner's wife is suffering from cancer and that the petitioner has to expend lot of moneys in connection with her treatment.
12. Taking into account these aspects, this Court is inclined to grant time by six months. Accordingly, the following orders and directions are issued :
(i) The impugned conviction and sentence of imprisonment till the rising of the court and to pay fine of Rs.94,350/- are confirmed.
Crl.R.P.No.1070/17 ::12::
The default sentence will stand reduced to one month simple imprisonment.
(ii) The petitioner is given six months' time from 1.9.2017 to pay the abovesaid fine amount. The petitioner will appear before the trial court at 11 A.M. on 3.3.2018 to receive the sentence of imprisonment till the rising of the court and to remit the fine amount of Rs.94,350/-.
(iii) The abovesaid fine amount so realised shall be disbursed in full as compensation to the complainant in terms of Section 357(1)(b) of the Cr.P.C. On default of the petitioner to pay the said amount, he will have to undergo simple imprisonment for one month.
(iv) Until 3.3.2018, all further coercive steps for execution of the impugned sentence in this case will stand deferred.
The Registry will forward a copy of this order to the trial court and to R1/complainant.
With these observations and directions, the Crl.Revision Petition will stand finally disposed of.
ALEXANDER THOMAS JUDGE csl