Kerala High Court
Y.B.Yahia vs P.M.Bava on 1 April, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1027 of 2000()
1. Y.B.YAHIA
... Petitioner
Vs
1. P.M.BAVA
... Respondent
For Petitioner :SRI.TOM JOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/04/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO.1027 OF 2000 (A)
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Dated this the 1st day of April, 2009
O R D E R
Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, for short the 'N.I.Act'. The 1st respondent filed a complaint against the revision petitioner for the offence under Section 138 of the N.I.Act. The accused pleaded not guilty. The learned Magistrate, after trial, found him guilty of the offence and convicted him thereunder, sentencing him to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/- with default term of simple imprisonment for three months more. In appeal, the Sessions Judge confirmed the conviction and sentence. Questioning the legality, propriety and correctness of the conviction and sentence, the accused has preferred this revision.
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2. The case of the complainant is that the accused collected Rs.65,000/- from him promising to secure a visa for his daughter, to get employment in a gulf country. When the promise was honoured only in its breach, and pursuant to demand made, the accused issued Ext.P1 cheque for the sum, promising its encashment on presentation in due course. The cheque presented, was, however, dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour was acknowledged but not responded with payment. The accused issued Ext.P7 reply notice, according to the complainant, raising untenable contentions. Complainant thereupon launched prosecution against the accused for the offence under Section 138 of the N.I.Act.
3. The accused on appearance, pleaded not guilty when the particulars of the offence were made known. Complainant examined three witnesses including himself as PW1 and got marked Exts.P1 to P8 to prove his case. During the course of CRL.R.P.1027/00 3 cross examination of the complainant, examined as PW1, and also when questioned under Section 313 of Cr.P.C., maintaining his innocence, the accused set up a defence that the complainant and several others including himself were duped by one Gopalakrishnan with false promises of securing visas to gulf country. It was his case that the complainant and his henchmen, after keeping him in duress, and exerting undue influence and coercion, compelled him to open an account in the Catholic Syrian Bank and, then, fraudulently obtained Ext.P1 cheque from him. Later presenting that cheque, which had been obtained by fraud and coercion, and getting that instrument dishonoured, a false case had been foisted against him on baseless allegations. In support of the defence canvassed, the accused examined three witnesses including himself as DWs.1 to 3 and got marked Exts.D1 to D5.
4. The learned Magistrate, after appreciating the materials produced, found the case of the complainant credit worthy and the defence set up by the accused unworthy of any merit. Being satisfied from the materials tendered by the CRL.R.P.1027/00 4 complainant that the accused had committed an offence under Section 138 of the N.I.Act, the learned Magistrate convicted him thereunder, sentencing him as indicated earlier. Sessions Judge, in appeal, after reappreciation of evidence, approved the finding arrived by the learned Magistrate and confirmed the conviction and sentence without any modification.
5. I heard the learned counsel for the accused. Though respondent had been served with notice, he has not entered appearance. Assailing the conviction, the learned counsel for the accused urged before me that the totality of the facts and circumstances presented in the case unerringly demonstrate that the defence version set up by the accused is more probable; but, unfortunately, both the courts below have discarded material circumstances brought out in the case concluding that the accused has not established his defence with legal evidence. The complainant, examined as PW1 had denied the suggestive questions put forth by the defence counsel in support of the defence version, but the answers CRL.R.P.1027/00 5 given by him, if read as a whole, according to the learned counsel for the accused, lend sufficient assurance to reach a conclusion that the defence version that one Gopalakrishnan had duped the complainant and several others including the accused, cannot be brushed aside as meritless. The evidence of DWs.1 and 2, two witnesses examined by the accused, to substantiate his defence taken along with his sworn testimony as DW3, it is submitted by the counsel, is more than sufficient to reach a conclusion that the defence version is probable. The non-examination of Gopalakrishnan, which, according to the counsel, was taken serious exception by the trial court was not on account of any fault of the accused but solely for the reason that the steps taken to procure his presence through the court were not successful. His non-examination was on account of reasons beyond the control of the defence, and that being so, he cannot be found fault with for not examining that witness to substantiate his defence version. Lastly, a fervent plea was also made by the counsel for reducing the sentence in case the conviction is found sustainable submitting that the accused is bedridden due to cancer.
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6. I have perused the records of the case giving consideration to the submissions made by the counsel. First and foremost, it has to be pointed out that a revisional court exercise its jurisdiction as a supervisory court, to correct the illegality or irregularity, if any, committed by the inferior courts. The primary object of having revisional jurisdiction over the subordinate courts is to avoid failure of justice. A revisional court in exercise of its superintendence cannot reappreciate the evidence to examine the correctness of the finding arrived at by the inferior courts unless it is shown that the finding is so perverse and could not have been arrived on the materials produced in the case. The trial court as well as the appellate court after analysing the evidence tendered in the case, had concurrently formed a conclusion that the accused has committed the offence under Section 138 of the N.I.Act. The learned Magistrate, who had the opportunity to watch the demeanor and deportment of the witnesses especially the complainant examined as PW1 and the accused examined as DW3, found the sworn testimony of the CRL.R.P.1027/00 7 complainant reliable, trustworthy and credible and that of the accused unworthy of credence. The Sessions Judge, after reappreciating the evidence in appeal, approved the conclusion reached by the learned Magistrate that the complainant has substantiated his case that Ext.P1 cheque was issued by the accused to discharge a liability arising out of a transaction, where under he had promised to secure a visa for his daughter to get employment in a gulf country. Ext.P1 cheque was obtained keeping him under duress and exerting coercion and undue influence, was the case set up by the accused to deny his liability under that instrument after its dishonour. Before the cheque was presented for enacashment, the accused has not approached any law enforcing agency, leave alone the police, to seek redressal of his grievance, if at all there is any grain of truth in the case set up by him that Ext.P1 cheque had been obtained keeping him under duress. Needless to point out that the bank will not open an account in the name of the accused unless his identity is established and he appears in person before the concerned bank officer. So much so, the defence case canvassed by the CRL.R.P.1027/00 8 accused that an account in Catholic Syrian Bank was opened keeping him under duress can be received only with a pinch of salt. As rightly pointed out by the learned Magistrate there was no merit in the defence case pleaded, as nothing prevented the accused in giving advance instructions to the bank not to honour the instrument. No such step was taken by the accused. He did not approach the police or the court with a complaint that he had been kept under duress and by exerting coercion, the complainant had collected Ext.P1 cheque from him. The proved facts and circumstances involved in the case demonstrate in unmistakable terms that the defence case pleaded that Ext.P1 cheque was obtained from the accused keeping him under duress, by the complainant, deserves to be taken note of only for its rejection. The materials produced by the accused as Exts.D1 to D5, at the most, would show that he had some transaction with one Gopalakrishnan in obtaining visa, after collecting substantial sums from several persons. Whether he acted as an agent of Gopalakrishnan in collecting of money to secure visa, is immaterial in the present case, where the only CRL.R.P.1027/00 9 question to be considered is whether Ext.P1 cheque executed by the accused had been duly executed by him for discharge of a debt or liability due to the complainant. The case of the complainant that it was the accused who had collected the money, to secure a visa for his daughter, was found believable and acceptable to the learned Magistrate and also to the Sessions Judge on the materials produced in the case. After going through the records, I find no reason to take a different view. When the demand for the money advanced was made, as the accused failed to secure the visa as promised, Ext.P1 cheque was issued and subsequently on its presentation, it was dishonoured due to insufficiency of funds in the account of the accused is the case of the complainant. The case so pleaded by the complainant had been proved by the materials, and the defence raised by the accused to deny his liability was found unworthy of any value. In such circumstances, the conviction founded against the accused for the offence under Section 138 of the N.I.Act can only be held to be proper, valid and correct, and it deserves to be upheld. I do so. CRL.R.P.1027/00 10
7. Now on the question of sentence, having regard to the submissions made by the learned counsel for the accused, that the accused is now bedridden with serious ailment cancer, which may be true, and also taking into account the nature of the offence with which he was convicted, under Section 138 of the N.I.Act, I find his incarceration for a term is not necessary to meet the ends of justice. True, false promises made for collecting money making representation that job visa would be secured, and later issuing cheques as repayment which on presentation are dishonoured, had to be dealt with deterrent punishment. However, as the submission of the counsel indicate that the accused is suffering from a serious ailment, which I find no reason to doubt, I am inclined to show indulgence in the matter of punishment. So much so, the sentence is modified, directing the accused to undergo imprisonment till the rising of the court and to pay compensation of Rs.75,000/- to the complainant under Section 357 (3) of the Cr.P.C. within two months from the date of this order. In default of payment of compensation within the time stipulated, the accused shall undergo simple imprisonment for CRL.R.P.1027/00 11 three months. The accused shall appear and his sureties to produce him before the Judicial First Class Magistrate Court, Kochi, on 1st June, 2009, and the learned Magistrate shall execute the sentence as directed.
Revision is partly allowed.
S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO.1027 OF 2000 (A)
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O R D E R
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1st April, 2009