Kerala High Court
K.G. Venugopal vs P.K. Basheer on 7 November, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939
Crl.Rev.Pet.No. 518 of 2017 ()
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CRA 474/2012 OF ADDITIONAL SESSIONS COURT -IV, THRISSUR
CC 174/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT.,KUNNAMKULAM
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REVISION PETITIONER/APPELLANT/ACCUSED:
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K.G. VENUGOPAL,
S/O.GOVINDAN KUTTY, KAIPARAMBIL HOUSE,
VELURE BAZAR, P.O. VELUR, THRISSUR DISTRICT.
BY ADV. SRI.E.ADITHYAN
RESPONDENT(S)/1ST RESPONDENT/COMPLAINANT & STATE:
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1. P.K. BASHEER,
S/O. KUNJU MOHAMMED, PUTHAMPULLY HOUSE, CHAVAKKAD,
THRISSUR DISTRICT PIN CODE - 680 506.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI - 682 031.
R1 BY ADV. SRI.MAHESH V.MENON
R2 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 07-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sdr/-
ALEXANDER THOMAS, J.
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Crl.R.P.No.518 of 2017
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Dated this the 7th day of November, 2017
O R D E R
The revision petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.174 of 2010 on the file of the Judicial First Class Magistrate Court, Kayamkulam, instituted on the basis of a complaint filed by the first respondent herein.
2. The trial court, as per the impugned judgment rendered on 21.7.2012, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo imprisonment simple imprisonment for a period of one month and to pay compensation of Rs.6,30,000/- to the complainant and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a period of 15 days. Aggrieved thereby the petitioner had preferred Crl.Appeal No.474 of 2012 before the Sessions Court, Thrissur. The appellate court concerned (Court of the IVth Additional Sessions Judge, Thrissur), as per the impugned judgment rendered on 24.1.2017, had dismissed the appeal confirming the conviction and modifying the sentence to imprisonment till the rising of the court and to pay compensation of Rs.6,30,000/- to the complainant under Section 357(3) of the Cr.P.C. and in default of Crl.R.P.518/17 ::2::
payment of compensation, to undergo simple imprisonment for a period of two months. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C.
3. Heard Sri.Adithyan Edappally, learned counsel appearing for the revision petitioner/accused, Sri.Mahesh.V.Menon, learned counsel appearing for R1/complainant, and Sri.Jestin Mathew, learned prosecutor appearing for R2/State.
4. The gist of the case of the complainant is to the effect that the complainant and the accused were well known to each other and that the accused is running an agency which deals with procuring of visas for foreign employment and that the complainant had approached the accused for procuring visas for six persons and that the accused had agreed that on payment of a total amount of Rs.6,30,000/-, he would be prepared to make arrangements for issue of visas to those six persons and that accordingly, those six persons had entrusted a total amount of Rs.6,30,000/- to the complainant who in turn had handed over the said amount to the accused on various occasions between 1.3.2008 and 30.6.2008 to the accused and that later there was default on the part of the accused to supply the visas and when the complainant had demanded for return of money, the accused on Crl.R.P.518/17 ::3::
15.2.2009 had issued the instant Exhibit-P1 cheque dated 15.2.2009 for Rs.6,30,000/- drawn from his account and payable in favour of the complainant. The cheque when presented resulted in dishonour as per Exhibit P2 and Exhibit P3 Bank memos. Thereupon the complainant had caused to sent Exhibit P-4 statutory demand notice dated 18.3.2009, calling upon the accused to pay off the amounts covered by the dishonoured cheque within a period of 15 days from the date of receipt of the said notice. The said notice sent by registered post has been duly served on the accused as per Exhibit P5 postal receipt and Exhibit P6 postal acknowledgment card. Since the accused had not responded and had not paid the amount, the complainant after resorting to the requisite formalities has initiated the present complaint which led to the conduct of the trial.
5. During trial, the complainant has examined himself as PW1 and has marked Exhibits P1 to P6 documents. The defence has not adduced any oral or documentary evidence.
6. PW1 (complainant) has deposed broadly in tune with the contents of his affidavit that the complainant and the accused were well known to each other. As per the understanding between the parties, the complainant had paid a total amount of Rs.6,30,000/- on various occasions between 1.3.2008 and 30.6.2008 to the accused for grant of visas to the above six persons. Since the visas were not supplied, the Crl.R.P.518/17 ::4::
accused had ultimately agreed to return the money by handing over Exhibit P1 cheque dated 15.2.2009 for Rs.6,30,000/- on 15.2.2009. But, the cheque when presented for encashment resulted in dishonour.
7. The main defence set up by the accused during the cross examination of PW1 is to the effect that there was no transaction between the parties as alleged in the complaint and that the complainant had advanced a personal loan amount of Rs.3,00,000/- to one Sri.Kabir, who is known between the parties and that in that transaction the accused had stood as surety and had given Exhibit P1 cheque as a blank signed one to the complainant as security in respect of the loan transaction between the complainant and the abovesaid Sri.Kabir. Except raising such a defence suggestion during the cross examination of PW-1, no clinching circumstance could be brought out in the evidence of PW-1 even remotely sustain the basis of such a factual plea. No independent evidence has been adduced by the defence to vindicate their said stand even the abovesaid Kabir has not been examined as a witness. Therefore, in these circumstances both the courts below have found that the said defence plea that was urged by the accused had remained only in the realm of a defence suggestion and that no probable or defence case in respect of that plea has been made out by the accused. Whereas both the courts below found that the evidence of PW1 is broadly credible and reliable and that they were Crl.R.P.518/17 ::5::
no other adverse circumstance which has let out in evidence to discredit or disbelieve the said oral evidence given by PW1.
8. Learned counsel for the petitioner would argue that neither the complaint nor the proof affidavit discloses the names and details of the six persons for whom the complainant had allegedly made the payment of Rs.6,30,000/- for grant of visa and the omission to state that crucial fact would vitiate the complaint. The complainant has broadly stated about the transactions between the parties and the arrangement was that the accused would supply visa to the six persons concerned on the complainant paying a total amount of Rs.6,30,000/- and that the complainant had infact paid a total amount of Rs.6,30,000/- to the accused on various occasions between 1.3.2008 and 30.6.2008 and that an amount of Rs.3,00,000/- out of the said total amount was paid on 1.3.2008 itself. By appreciating the nature of the transactions projected in the complaint, this Court is of the view that the omission to state the names and details of six persons in the complaint, cannot be said to be an aspect which has caused any serious prejudice to the accused. In the cross examination of P.W-1, the accused has not raised any frontal attack against the very authenticity of the plea regarding the transaction.
The names and details of the persons have been disclosed by the complainant in the cross examination. Therefore, if the accused was sure that the entire transaction alleged by the complainant was a falsity, Crl.R.P.518/17 ::6::
then certainly nothing prevented him from taking steps to adduce evidence through such persons concerned. The second argument advanced by the learned counsel for the petitioner is that no evidence has been adduced to prove the source of money of the abovesaid six persons. The evidence given by the complainant has been found to be believable and credible by both the courts below. During that perspective, this Court is not in a position to say that the reliance made on the oral evidence of PW-1 by both the courts below cannot be said to be totally unfounded or perverse. Therefore, the said argument of the petitioner also cannot be countenanced in this revisional proceedings.
9. It is in the light of these considered findings of fact that both the courts below have found on a concurrent basis that the accused is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. These findings cannot be said to be vitiated by illegality or perversity and therefore, this Court is not in a position to interdict with those considered findings of fact regarding the conviction of the petitioner by taking recourse to the revisional powers conferred on this Court. As regards the sentence, it is seen that though the trial court had sentenced the petitioner to undergo simple imprisonment for a period of one month and to pay compensation of Rs.6,30,000/- (cheque amount), the appellate court has reduced the substantive sentence to imprisonment till the rising of the court and had Crl.R.P.518/17 ::7::
confirmed the compensation amount of Rs.6,30,000/-. The said sentence so made by the appellate court cannot be said to be excessive or disproportionate. The default sentence clause is two months. Accordingly, this Court is not in a position to interfere with the sentence and the quantum of compensation awarded in this case.
10. Sri.Adithyan Ezhapilly, learned counsel for the petitioner, submits that in case this Court is so inclined to confirm the conviction and the sentence, then this Court may grant ten months' time to the petitioner to pay the compensation amount of Rs.6,30,000/- directly to the complainant. Learned counsel for the respondent/complainant would submit that this Court may not grant more than six months.
Having regard to the facts and circumstances of this case, this Court is inclined to grant time by seven months.
11. Accordingly, the following orders and directions are passed :
(i) The impugned conviction, substantive sentence of imprisonment till the rising of the court, compensation amount of Rs.6,30,000/-
and default sentence clause of two months' simple imprisonment etc. imposed in this case are confirmed.
(ii) The petitioner is given seven months' time to pay the compensation amount of Rs.6,30,000/- directly to the complainant. On receiving such payments, the complainant shall issue necessary receipts evidencing such payments to enable the accused to present the same before the trial court to Crl.R.P.518/17 ::8::
satisfy the said court about such payments.
(iii) The petitioner shall personally appear before the trial court at 11 A.M. on any day on or before 16.6.2018 to suffer the imprisonment till the rising of the court and to satisfy the said court about payment of the compensation amount of Rs.6,30,000/- directly to the complainant. Needless to say on default of the petitioner to pay the said amount he will have to suffer simple imprisonment for a period of two months.
(iv) Until 16.6.2018, all further coercive steps that may be taken in pursuance of the execution of the impugned sentence in this case will stand deferred.
(v) On default of the petitioner either to appear before the trial court or to pay the abovesaid amount as directed above, the trial court will be at liberty to proceed against the petitioner in accordance with law.
The Registry to to forward a copy of this order to the trial court for necessary information.
With this observations and directions, the Criminal Revision Petition will stand finally disposed of.
ALEXANDER THOMAS JUDGE csl