Kerala High Court
Jacob Varghese vs State Of Kerala on 30 June, 2014
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY,THE 17TH DAY OF NOVEMBER 2014/26TH KARTHIKA, 1936
Crl.Rev.Pet.No. 1534 of 2014
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AGAINST THE JUDGMENT IN CRL.APPEAL NO. 369/2010 OF ADDITIONAL SESSIONS
COURT - IV, KOLLAM, DATED 30-06-2014
AGAINST THE JUDGMENT IN C.C.NO.574/2009 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT -I, KOTTARAKKARA, DATED 13-08-2010
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REVISION PETITIONER(S)/APPELLANT/ACCUSED :
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JACOB VARGHESE,
VADAKKADATHU PUTHEN VEEDU, THRIKKANNAMANGAL,
KOTTARAKARA P.O.
BY ADVS.SRI.ALEXANDER GEORGE
SRI.D.SREEKUMAR (KALAMASSERY)
RESPONDENT(S)/ COMPLAINANT/ STATE :
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1. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM- 682 031.
2. ALEX KUTTY M.G,
AKHIL COTTAGE, KARINGODU, PULAMON P.O.,
KOTTARAKARA- 691 506.
R1 BY PUBLIC PROSECUTOR SRI.N.SURESH
R2 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.DILU JOSEPH
SRI.MANU SEBASTIAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 17-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
K.RAMAKRISHNAN, J
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Crl.R.P.No.1534 OF 2014
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Dated this the 17th day of November, 2014
O R D E R
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Accused in CC.No.574/2009 on the file of the Judicial First Class Magistrate Court-I, Kottarakkara, is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the complainant against the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act (herein after called the Act).
3. The case of the complainant in the complaint was that revision petitioner borrowed a sum of `.4,50,000/- and in discharge of that liability, he had issued Ext.P1 cheque for the said amount in favour of the complainant, which when presented was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo. This was intimated to the complainant by his banker vide Ext.P2(a) intimation letter. Complainant issued Ext.P3 notice vide Ext.P4 postal receipt and the same was returned with endorsement unclaimed by the addressee. The revision petitioner had not paid the amount. So he had committed the offence punishable under section 138 of the Act. Hence the complaint.
4. When the revision petitioner appeared before the court below, the particulars of offence were read over and Crl.R.P.No.1534 OF 2014 2 explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P5 were marked on the side of the complainant. After closure of the complainant's evidence, since his personal appearance was exempted questioning under section 313 of the Code of Criminal Procedure (herein after called the Code) was dispensed with on account of the proviso under section 313 of the Code. No defence evidence was adduced on his side to prove his case. The suggestion given was that one John Mathew had borrowed `.1,00,000/- from the complainant during June 2007, and as security for the amount his blank signed cheque was obtained. But no evidence was adduced on his side to prove this fact. So, the learned Magistrate found the revision petitioner guilty under section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay cheque amount of `.4,55,000/- as fine in default to undergo simple imprisonment for three months more. It is further ordered if the fine amount is realised, the same to be paid to the complainant as compensation under section under section 357(1) (b) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.369/2010 before the Sessions Court, Kollam, which was made over to Crl.R.P.No.1534 OF 2014 3 Additional Sessions Court-IV, Kollam, for disposal and the learned IVth Additional Sessions Judge by the impugned judgment allowed the appeal in part by reducing the substantive sentence to one month simple imprisonment but confirmed the order of lower court on all other aspects. Dissatisfied with the same, the present revision petition has been filed by the revision petitioner-accused before the court below.
5. Since, the respondent had appeared through counsel, and considering the nature of contentions raised, this court felt that the revision can be admitted and the matter can be disposed of after hearing both sides on merit today itself. So, the revision is admitted and heard and disposed of today itself.
6. The counsel for the revision petitioner submitted that there is no money transaction between the complainant and the revision petitioner and in fact, his blank signed cheque was obtained as security for the money transaction between one John Mathew and the complainant and misusing the cheque the present complaint has been filed. Further, there is no proper service of notice as well. So, the courts below were not justified in convicting the revision petitioner for the offence alleged.
Crl.R.P.No.1534 OF 2014 4
7. On the other hand, the counsel for the second respondent submitted that there is no evidence adduced on the side of the revision petitioner to prove his case. The burden is on him to prove under what circumstances his cheque has reached the hands of the complainant which he did not discharge. So, the courts below were perfectly justified in convicting the revision petitioner for the offence alleged. The sentence imposed is harsh.
8. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of `.4,50,000/- and in discharge of that liability, he had issued Ext.P1 cheque. The case of the revision petitioner was that there is no money transaction directly between himself and the second respondent and in fact he was only a mediator in the loan transaction between one John Mathew who borrowed an amount of `.1,00,000/- from the complainant and as security for repayment of the amount by John Mathew, his blank signed cheque was obtained and this was misused. The complainant was examined as PW1 and he deposed in support of his case in the complaint. Though, he was cross-examined at length, nothing was brought out to discredit his evidence on these aspects. The revision petitioner had no case that the complainant had no capacity to raise the amount and pay the Crl.R.P.No.1534 OF 2014 5 amount as well. Even, as per his case, he had given a loan to one John Mathew who is the contractor, who required money for completing his work undertaken by him for the Panchayath. The burden is on him to prove the circumstances under which the cheque has reached the hands of the complainant. He did not adduce any evidence to prove this fact. It is settled law that mere denial of transaction or that the cheque was not issued in discharge of any liability alone is not sufficient to rebut the presumption and the burden is on the revision petitioner to prove those aspects, once, the complainant had proved his case by examining himself that the cheque was issued in discharge of that liability, that was not done in this case. In the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption under section 139 of the Act, the courts below were perfectly justified in relying the evidence of PW1 and the statutory presumption available under section 139 and 118 of the Act and coming to the conclusion that revision petitioner had issued Ext.P1 cheque in discharge of his liability as pleaded by the complainant.
9. As regards the notice is concerned, the notice was sent in the address normally in which it will be served on him and the revision petitioner has no case that notice will not be served in that address and it is returned as with endorsement Crl.R.P.No.1534 OF 2014 6 unclaimed after giving intimation to the addressee. Once it is proved by the complainant that notice has been issued in which it will be normally served by registered post and if it is returned with endorsement unclaimed, then it will be deemed service on the revision petitioner and that will be treated as sufficient service as well. So, under the circumstances, courts below ere perfectly justified in coming to the conclusion that there is proper service of notice as contemplated under section 138 of the Act and the revision petitioner had not paid the amount and the revision petitioner had committed the offence under section 138 of the Act and the concurrent findings of the courts below on this aspect do not call for any interference
10. As regards the sentence is concerned, though the court below had sentenced him to undergo simple imprisonment for one year and also to pay a fine of `.4,50,000/- in default to undergo simple imprisonment for three months and further ordered if the fine amount is realised, the same to be paid to the complainant as compensation under section under section 357(1) (b) of the Code of Criminal Procedure, the appellate court though confirmed the fine and direction to pay compensation out of fine with default sentence reduced the substantive sentence to simple imprisonment for one month.
11. It is settled law, that the proceeding under section Crl.R.P.No.1534 OF 2014 7 138 of the Act has become penal in nature only after this was introduced in the Negotiable Instruments Act and prior to that it was a civil dispute. Further, the object of the legislature in making it a criminal offence is to see that the drawer of the cheque is paying the amount covered by the cheque and the payee is getting the amount from the drawer and not to send him to jail. This was so held in the decision reported in Damodar S. Prabhu V Sayed Babalal.H. [JT 2010(4) SC 457]. Further, in the decision reported in Somanth Sarkar V Utpal Bahu Mallick [2013(4) KLT 350], the Supreme Court has held that the court has got power to impose double cheque amount as fine and substantive sentence is not always mandatory and if sufficient fine is imposed and out of fine, compensation is directed to be paid, then compulsory imprisonment can be dispensed with as well. So, considering the circumstances, this court feels that fine can be increased to `.4,60,000/- and the default sentence can be enhanced to six months instead of three months and the substantive sentence can be waived and that will meet the ends of justice. So, the substantive sentence of one month imprisonment and default sentence of three months and the fine of `.4,55,000/- fixed by the court below are set aside and the same is modified as follows:-
Crl.R.P.No.1534 OF 2014 8
The revision petitioner is sentenced to pay a fine of Rs.`.4,60,000/- in default to undergo simple imprisonment for six months and if the fine amount is realised, the court below is directed to pay the same to the complainant as compensation under section 357(1) (b) of the Code of Criminal Procedure. The counsel for the revision petitioner prayed six months for payment of the amount. Considering the amount involved, this court feels that the prayer made by the revision petitioner for payment of the amount cannot be said to be excessive. So, the revision petitioner is granted time till 17.05.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and the revision petitioner produces proof of such payment before the court below and if it is acknowledged by the complainant by appearing before that court, then the court below is directed to treat the same as substantial compliance of payment of compensation out of fine as ordered by this court and record the same in the respective registers as provided in the decision reported in Beena V. Balakrishnan Nair and Another [2010(2) KLT 1017] and Sivankutty V. John Thomas and Another [2012(4) KLT 21] With the above modification of sentence alone and Crl.R.P.No.1534 OF 2014 9 granting of time, the revision is allowed in part. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV //true copy// PA to Judge