Kerala High Court
Moideen Shah vs Dr.Joseph Mathew
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2017/12TH MAGHA, 1938
Crl.Rev.Pet.No. 2198 of 2008
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JUDGMENT DATED 15-05-2008 IN CRL.A 742/2007 OF ADDITIONAL
DISTRICT COURT - VI, ERNAKULAM
JUDGMENT DATED 22-10-2007 IN CC 763/2002 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT - II, ERNAKULAM
......
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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MOIDEEN SHAH,
S/O.MARAKKAR SHAH, 58 YEARS,
SHAH INTERNATIONAL, NORTH SQUARE,
PARAMARAA ROAD, ERNAKULAM
BY ADV. SRI.JOSHI N.THOMAS
RESPONDENT(S)/RESPONDENTS/COMPLAINANT:
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1. DR.JOSEPH MATHEW, PALLITHANAM,
SECRED HEART HOSPITAL QUARTERS,
GREEN GARDENS, CHERTHALA P.O.,
ALAPPUZHA.
2. STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
R1 BY ADV. SRI.S.KRISHNAMOORTHY
R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 01-02-2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
msv/
ALEXANDER THOMAS, J.
==================
Crl.R.P.No. 2198 of 2008
Dated==================2017
this the 1st day of February,
O R D E R
The aforecaptioned Revision Petition has been instituted by the revision petitioner accused to impugn the conviction and sentence imposed on him for the offence under Sec.138 of the Negotiable Instruments Act as per the impugned judgment dated 22.10.2007 of the Judicial First Class Magistrate's Court-II, Ernakulam, in C.C.No.763/2002, as affirmed by the impugned appellate judgment dated 15.5.2008 of the Court of VIth Addl. Sessions Court, Ernakulam, in Crl.Appeal No.742/2007. The trial court, while convicting the petitioner for the above offence, had sentenced him to undergo simple imprisonment for 3 months and had awarded compensation of Rs.1.4 lakhs to be paid to the complainant and in default thereof, to suffer simple imprisonment for a further period of one month.
2. The appellate court has confirmed the said conviction and sentence. Aggrieved by the said concurrent findings rendered by both the courts below that the revision petitioner accused has approached this Court by filing the instant revision petition by taking recourse to the remedies under Secs.397 and 401 of the Crl.R.P.2198/08 - : 2 :-
Code of Criminal Procedure.
3. The gist of the prosecution complaint is that the accused had owed monies to one Sri.A.K.Sarkar of Calcutta, in connection with some transactions relating to rental of some rooms near Ernakulam north and further that the said Sri.A.K.Sarkar had owed certain monies to Dr.Joseph Mathew and that therefore Sri.A.K.Sarkar authorised Dr.Joseph Mathew by instituting a notarised power of attorney in favour of the latter, to collect the monies from the petitioner, which he had owed to Sri.A.K.Sarkar. That on showing the said power of attorney, the petitioner was satisfied about its correctness and had voluntarily issued the instant cheque for Rs.1 lakhs and yet another cheque for Rs.1 lakh, in favour of Dr.Joseph Mathew. (The latter cheque for the amount of Rs.1 lakh was also the subject matter of yet another Sec.138 complaint, which has ended in conviction and sentence as per the final order dated 15.7.2005 rendered by this Court in Crl.R.P.No. 3155/2004). In the instant, the cheque in question, when presented was dishonoured due to insufficiency of fund, upon which the power of attorney holder had issued a statutory notice under clause
(b) to Sec.138 proviso to the petitioner, which was duly received by Crl.R.P.2198/08 - : 3 :-
him and to this, the petitioner had sent a reply stating that the cheque was given only as security, etc. Since the amount was not re-paid, the instant complaint was filed. Initially the complaint was filed in such a manner by showing in the cause-title thereof as if Dr.Joseph Mathew power of attorney holder as the principal complainant. Therefore, later the trial court as per order dated 28.9.2007 on Crl.M.P. No.3761/2007 in C.C.No.763/2002 had ordered that the cause-title of the complaint is formally permitted to be amended to show that the complainant as Sri.A.K.Sarkar, represented by his power of attorney holder Sri.Joseph Mathew, etc. The complainant had examined the power of attorney holder as P.W-1 and had marked Exts.P-1 to P-6 documents. The defence had examined DW-1 (accused) as well as DW-2, (wife of the complainant's power of attorney holder, Dr.Joseph Mathew,) and had also marked Exts.D-1 and D-2. The trial court found that the complainant has fulfilled all the statutory formalities for initiation of the instant complaint. The trial court also found on merits that the dishonoured cheque was issued by the accused so as to discharge of a legally recoverable debt or liability as alleged by the complainant, etc. Accordingly, the trial court convicted the Crl.R.P.2198/08 - : 4 :-
petitioner for the offence under Sec.138 of the Negotiable Instruments Act and had sentenced him to undergo simple imprisonment for a period of 3 months and awarded compensation of Rs. 1.4 lakhs to be paid to the complainant and in default thereof, the accused was to suffer further simple imprisonment for one month. The appellate court as per the impugned judgment dated 15.5.2008 has confirmed both the conviction as well as the sentence.
4. Heard Sri. Joshi.N.Thomas, learned counsel appearing for the revision petitioner accused, Sri.S.Krishnamoorthy, learned counsel appearing for the 1st respondent (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.
5. The trial court on a careful evaluation of the evidentiary materials on record came to the considered conclusion that monies were owed by the accused to one Sri.A.K.Sarkar, Calcutta, in connection with their transactions in relation to rental of some rooms near Ernakulam north. It was also found based on the evidence of P.W-1 that monies were owed by Sri.A.K.sarkar to the abovesaid power of attorney holder and that Sri.A.K.Sarkar had duly executed a notarised power of attorney in favour of Dr.Joseph Crl.R.P.2198/08 - : 5 :-
Mathew to claim and receive the monies owed by the accused to Sri.A.K.Sarkar. That the power of attorney holder had presented the power of attorney before the accused, who was satisfied about the same and had tendered payment of Rs.1 lakh by issuing and executing the instant cheque, which was later dishonoured, etc. It is also not in dispute that for a similar or identical transaction between the petitioner accused and power of attorney holder of Sri.A.K.Sarkar, there was another Sec.138 complaint due to the dishonour of the said cheque as well. The petitioner herein was convicted by the trial court as well as the appellate court in that matter, which was affirmed by this Court in the final order dated 5.7.2005 passed in Crl.R.P.No. 3155/2004.
6. On a careful assessment of the evidence on record, the trial court found that the plea put up by the defence that the cheque was issued only as a security was not acceptable and also found that the evidence presented by P.W.1 is credible and believable and that he has proved the transaction alleged in the complaint. Accordingly, the trial court came to the considered conclusion that the dishonoured cheque in question was duly executed and issued by the petitioner accused to the power of attorney holder, to discharge Crl.R.P.2198/08 - : 6 :-
a legally recoverable debt or liability as alleged in the complaint. In the light of these aspects, the trial court also found that the complainant has duly fulfilled all the statutory formalities in the initiation of the instant complaint. These aspects on facts have been fully upheld by the appellate court as well. This Court is of the opinion that the views so taken by the trial court as affirmed by the appellate court, do not suffer from any gross perversity or unreasonableness so as to deserve any interference at the hands of the revisional court. Moreover, the learned counsel appearing for the petitioner accused has not been able to convincingly present a case that any crucial relevant or material evidentiary aspects have been shut out by both the courts below while arriving at the impugned conclusions in the instant case.
7. Sri.Joshi N.Thomas, learned counsel appearing for the revision petitioner accused has also raised a contention that the complaint was initially filed as if the power of attorney holder himself is the complainant. Therefore, going by the averments in the complaint that monies were owed by the accused to Sri.A.K.Sarkar, the complaint itself was not maintainable. That when the accused has raised this specific contention, the complainant had sought to Crl.R.P.2198/08 - : 7 :-
get over this difficulty by filing an application for amendment of the formal cause-title of the complaint. The said plea for amendment or correction of the cause title was allowed by the trial court as per order dated 28.9.2007, passed on Criminal Miscellaneous Petition No.376/2007 in the present case (C.C.No.763/2002). It is urged by Sri.Joshi.N.Thomas, learned counsel appearing for the revision petitioner accused that the said order passed by the trial court is a grave illegality and that the trial court has no such power conferred either by the provisions of the Code of Criminal Procedure or by the provisions of the Negotiable Instruments Act or by the provisions in the Criminal Rules of Practice, to pass such an order permitting such an amendment or change in the cause-title so as to get over the basic lacuna in the complaint. Sri.S.Krishnamoorthy, learned counsel appearing for the complainant has urged that the trial court is fully within its rights to allow the said plea for amendment or correction of the cause title.
8. It is not in dispute that monies were owed by the petitioner accused to one Sri.A.K.Sarkar, who in turn had owed monies to Dr.Jopseh Mathew. Notarised power of attorney was executed by Sri.A.K.Sarkar, so as to claim and receive Crl.R.P.2198/08 - : 8 :-
the monies owed to Sri.A.K.Sarkar, from the petitioner accused. These aspects have been duly disclosed in the complaint as well. Therefore, the cause-title in the original complaint had shown Dr.Joseph Mathew as the principal complainant. This was certainly a defect or lacuna. This was said to be a technical defect or lacuna inasmuch as the principal complainant could have been only Sri.A.K.Sarkar, represented by the power of attorney holder. By virtue of these aspects that the trial court has passed the order dated 28.9.2007 so as to permit amendment/correction of the cause title as indicated above.
9. In the judgment in U.P.Pollution Control Board v. Modi Distillery, reported in (1987) 3 SCC 684 = 1987 SCC (Cri.) 632, the Apex Court dealt with a case where the name of company was wrongly mentioned in the criminal complaint, whereby, instead of the correct name as "M/s.Modi Distillery Limited", the name of the complainant was mentioned as "M/s.Modi Distillery" and name was sought to be amended by filing an application before the court. It was argued that there is no specific provision either in the Code of Criminal Procedure or in any other law, which empowers a criminal court to amend either a complaint or a revision filed under the Crl.R.P.2198/08 - : 9 :-
provisions of the Code of Criminal Procedure. Dealing with that contention, the Apex Court held that such a technical defect is one which could be easily cured by the criminal court and it was held as follows in (1987) 3 SCC 684, pp. 659-60, para 6.
"6. ...The learned Single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in Para 2 of the complaint so as to make the controlling company of the industrial unit figure as the accused concerned in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery. ... Furthermore, the legal infirmity is of such a nature which could be easily cured."
10. The matter also came up for the consideration of the Apex Court in S.R. Sukumar v. S. Sunaad Raghuram, reported in (2015) 9 SCC 609. The Apex Court held in paras 18 and 19 thereof that it is true that there is no specific provision in the Code of Criminal Procedure to amend either a complaint or a petition filed under the provisions of the Cr.P.C., but the court have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints and that an easily curable legal infirmity could be cured by means of a formal application for amendment and if the amendment sought to be made relates to a Crl.R.P.2198/08 - : 10 :-
simple infirmity, which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Cr.P.C. for entertaining such amendment. The court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint. It will be profitable to refer to paras 18 and 19 of the judgment of the Apex Court in S.R.Sukumar's case supra reported in (2015) 9 SCC 609, pp.620 paras 18 and 19.
"18. Insofar as merits of the contention regarding allowing of amendment application is concerned, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery [(1987) 3 SCC 684] wherein the name of the company was wrongly mentioned in the complaint, that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows: (SCC pp. 659-60, para 6) "6. ...The learned Single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in Para 2 of the complaint so as to make the controlling company of the industrial Crl.R.P.2198/08 - : 11 :-
unit figure as the accused concerned in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery. ... Furthermore, the legal infirmity is of such a nature which could be easily cured."
19. What is discernible from U.P. Pollution Control Board case [(1987) 3 SCC 684] is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint.'
11. In the instant case, going by the averments in the complaint as well as the evidence on record, it is clear that monies were actually owed by the petitioner accused to one Sri.A.K.Sarkar, who in turn had owed monies to Dr.Joseph Mathew. It is in these circumstances that a power of attorney was duly executed in favour of Dr.Joseph Mathew, about which there is no dispute. It has come out in evidence that even the power of attorney was duly shown to the complainant, which resulted in the issuance of the impugned cheque in question. Therefore, going by the case clearly disclosed in the complaint as well as that brought out in evidence, the complaint should have been formally instituted in the name of Sri.A.K.Sarkar, represented by power of attorney holder. This was only a technical Crl.R.P.2198/08 - : 12 :-
flaw or infirmity and these aspects were very well known to the accused and therefore, in allowing such a plea for amendment or correction of the cause title so as to get over this technical infirmity, cannot be said to have caused any prejudice to the accused. Moreover, this Court is of the view that the said infirmity is only a minor one, which is curable. In the light of these aspects, this Court is constrained to overrule the abovesaid contention raised by Sri.Joshi N.Thomas, learned counsel appearing for the petitioner accused in respect of the formal amendment made to the cause- title of the complaint. In the light of these aspects, this Court finds no ground so as interfere with the impugned conviction imposed by the both the courts below.
12. As regards the question of sentence, it is seen that trial court has ordered that the petitioner shall suffer simple imprisonment for a period of 3 months. The said substantive sentence of 3 months appears to be on the higher side. The Apex Court had in various rulings as in Kaushalya Devi Massand v. Roopkishore reported in AIR 2011 SC 2566, has held that the offence relating to Sec.138 of the Negotiable Instruments Act is essentially in the nature of civil law, which has been given a wrong Crl.R.P.2198/08 - : 13 :-
criminal overtones and that the gravity of such a criminal complaint cannot be equated with an offence under the provisions Indian Penal Code and instead of jail sentence, imposition of fine payable as compensation will certainly be sufficient to make the ends of justice, etc.
13. In the light of these aspects, Sri. Joshi.N.Thomas, learned counsel appearing for the revision petitioner accused would make an alternate plea that in case this Court is inclined to uphold the conviction, then this Court may interfere with the sentence and may limit the punishment as one of compensation for an amount of Rs. 1.4 lakhs, awarded by the courts below. The said plea made by Sri.Joshi N.Thomas, learned counsel appearing for the revision petitioner accused appears to be, in the view of this Court, quite fair and reasonable. The petitioner accused would also seek further time by 8 months to make payment of the fine. In the light of the above discussion, the following orders and directions are issued;
(i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act as per the impugned judgments of both the courts below will stand confirmed.
(ii) The substantive sentence of simple imprisonment imposed for 3 months imposed by the courts below will stand set aside. The petitioner will pay a compensation of Rs. 1.4 lakhs to the complainant directly.
Crl.R.P.2198/08 - : 14 :-
(iii) Upon payment of such amount, the complainant will issue receipts evidencing payment of such amounts by the revision petitioner accused. The petitioner is given 6 months' time from 15.2.2017 so as to make payment of the total amount of Rs.1.4 lakhs.
(iv) In default on the part of the petitioner to pay the said amount of Rs.1.4 lakhs, the petitioner will suffer simple imprisonment for a further period of 2 months.
(v) The petitioner will personally appear before the trial court at 11 a.m. on 19.8.2017 in order to satisfy the trial court about the payment of the abovesaid amount of Rs.1.4 lakhs as directed above. On default on the part of the petitioner to pay the said amount of Rs. 1.4 lakhs, the petitioner will suffer simple imprisonment for a further period of 2 months.
(vi) On default of the petitioner either to appear before the trial court at 11 a.m. on 19.8.2017 as directed above or on default of payment of the abovesaid amount, the trial court will be at liberty to proceed against the petitioner in accordance with law.
With these observations and directions, the Criminal Revision Petition stands finally disposed of.
sdk+ ALEXANDERSd/- THOMAS, JUDGE
///True Copy///
P.S. to Judge