Kerala High Court
B.Santha vs Unknown on 24 February, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933
Crl.Rev.Pet.No. 435 of 2012 (D)
------------------------------
CRA.NO.101/2010 of ADDL. DIST. COURT & SESSIONS COURT (AD-HOC) FAST
TRACK COURT III, PATHANAMTHITTA
ST.NO.781/2007 of J.F.M.C.-I,PATHANAMTHITTA
REVISION PETITIONER/APPELLANT/ACCUSED:
--------------------------------------
B.SANTHA, W/O. RAGHAVAN,
SINDHU BHAVAN, AYOORKONAM,
VAZHAYILA, PEROORKADA, VATTIYOORKAVU,
THIRUVANANTHAPURAM.
BY ADVS.SRI.B.S.SWATHY KUMAR
SMT.M.G.AISHWARYA
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE
-------------------------------------------
1 MULAMOOTTIL FINANCE CORPORATION,
REPRESENTED POWER OF ATTORNEY HOLDER V.K. ABRAHAM,
MANAGER, MULAMOOTTIL FINANCE CORPORATION,
KOZHENCHERRY - 689 641.
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031
R1 BY ADV. SRI.V.PHILIP MATHEW
R2 BY PUBLIC PROSECUTOR, SRI. T.R. RAJESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
24-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
DST
P.BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - -
Crl.R.P.No.435 of 2012
- - - - - - - - - - - - - - - - - - - - - - -
Dated this the 24th day of February, 2012
O R D E R
The accused in this case was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. She was found guilty. She was therefore convicted and sentenced to suffer simple imprisonment for a period of four months and to pay a fine of Rs.1,00,000/-, in default of payment of which she had to suffer simple imprisonment for a further period of two months. It was also directed that, if the fine amount was realized the same should be paid as compensation to the complainant under 357(1)(b) of Cr.P.C. In appeal, the lower appellate court confirmed the conviction but modified the sentence as one to simple imprisonment till the rising of the court and to pay a fine of Rs.1,00,000/-, in default of payment she had to undergo simple imprisonment for a period of two months. The appellate court also directed that if the fine amount was realized, the same should be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. -:2:- Crl.R.P.No.435 of 2012
2. When this revision petition come up for admission today, the learned counsel appearing for the revision petitioner pointed out that the revision petitioner does not wish to address this Court on merits of the case and confines her plea to one for grant of time to pay the fine amount as ordered by the courts below so as to ward off the default sentence.
3. However in order to ensure that there is no illegality, impropriety or irregularity in the findings of the courts below, this Court carefully perused the judgments of the courts below.
4. According to the complainant, the accused had borrowed a sum of Rs.1,00,000/- and in order to discharge the said debt, the Ext.P2 cheque was issued by the accused. It is to be noticed here that the complainant is a Finance Company which extends loans to the public. Ext.P2 cheque on presentation bounced for want of funds in the account of the accused. A statutory notice issued to the accused was received by her, but failed to invoke any response. Since -:3:- Crl.R.P.No.435 of 2012 the amount remained unpaid, the complaint was laid.
5. Cognizance of the offence was taken. On appearance of the accused, all formalities were complied with. Particulars of the offence were read out to her, to which she pleaded not guilty and claimed to be tried.
6. The power of attorney holder of the complainant company was examined as PW1 and had Exts.P1 to P10 marked. After the close of the complainant's evidence, the accused was questioned under Section 313 Cr.P.C. She denied all the incriminating circumstances brought out in evidence against her and maintained that she is innocent. She set up a defence that she had issued Ext.P2 cheque, which was a signed blank one, in relation to a chitty transaction which she had with Mulamoottil Finance and Curries, at its Branch Office, Peroorkada. The cheque was given by her at the time she had received the chitty amount and she had been paying the installments through a collection agent. Subsequently that branch was closed and she denied having had any transaction with the complainant -:4:- Crl.R.P.No.435 of 2012 and disputed her liability to pay any amount under Ext.P2 cheque. She however chose to adduce no evidence.
7. Both the courts below, on an appreciation of the evidence in the case came to the conclusion that the evidence furnished by the complainant is sufficient to show that the accused had availed of a loan from the company and had failed to repay the same. It also came to the conclusion that Ext.P2 cheque was in fact issued by the accused in discharge of the said liability.
8. As already noticed, the power of attorney holder of the company was examined as PW1. The complainant had produced Exts.P9 and P10 which clearly show that the accused had availed of financial facility from the complainant company. There is nothing to show that the liability so incurred has been discharged. Obviously Ext.P2 cheque must have been issued to discharge the said liability.
9. Even though the accused had given a different version regarding the cheque, she did not adduce any -:5:- Crl.R.P.No.435 of 2012 evidence in support of her defence. The accused offered no satisfactory explanation as to how the cheque, which contains her signature and drawn on her account happened to come into the possession of the complainant. The complainant had shown that the accused had availed of financial facility and had issued Ext.P2 cheque and in the light of that fact, the courts below rightly held that the presumptions under Section 139 and 118 of the Negotiable Instruments Act are available to the complainant. The burden is certainly on the accused to rebut the presumptions.
10. She could rebut the presumption either by relying on the evidence of the complainant or by adducing evidence of her own or her behalf. There is nothing in the evidence of the complainant to show that there was any suspicious circumstances to doubt the version given by the complainant. Under those circumstances the accused could not be heard to say that Ext.P2 cheque was not issued as contended by the complainant. There is no evidence -:6:- Crl.R.P.No.435 of 2012 adduced by her to vitiate.
11. Further, it is significant to notice that a statutory notice was in fact issued to the accused and was received by her. But she kept silent. If she had a case that she had no transaction with the complainant company or that the cheque has been misused, it was the first opportunity to respond and inform complainant about the same. Her silence goes a long way, in showing her culpability.
12. It was the above facts and circumstances that persuaded the courts below to come to the conclusion that the accused was guilty of the offence alleged against her. That finding has been arrived at on appreciation of the evidence in the case and is not shown to be either perverse or unwarranted by the evidence on record. Therefore no interference is called for with the finding of guilt, under revisional jurisdiction of this Court. The lower appellate court has shown leniency with regard to the sentence and reduced the substantive sentence to simple imprisonment till the rising of the court.
-:7:- Crl.R.P.No.435 of 2012
13. The learned counsel appearing for the revision petitioner then prayed that the revision petitioner may be granted some time to pay the fine amount as ordered by the courts below so as to ward off the default sentence.
14. Considering the fact that the revision petitioner has shown her readiness and willingness to pay the amount, it is felt that some time can be granted to pay the fine amount as ordered by the courts below.
In the result, while confirming the conviction and sentence passed by the lower appellate court, the revision petitioner is granted four months time from today to pay the fine amount as ordered by the courts below, failing which the default clause ordered by lower appellate court shall take effect.
P.BHAVADASAN, JUDGE kkj