Kerala High Court
Ragini vs The State Of Kerala on 1 November, 2017
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 NOVEMBER 2017/10TH KARTHIKA, 1939
Crl.Rev.Pet.No. 601 of 2015 ()
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CRA 387/2012 OF ADDITIONAL SESSIONS COURT-I,MAVELIKKARA
CC 642/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, HARIPAD
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REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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RAGINI., AGED 49 YEARS,
D/O.THANKAPPAN, PAIKKAPPALLITHARAYIL, PUTHIYAVILA VADAKKU
MURI, KANDALLUR VILLAGE, ALAPPUZHA.
BY ADVS.SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
SRI.K.JAGADEESH
RESPONDENT(S)/RESPONDENTS/STATE AND THE COMPLAINANT:
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
2. MURALEEDHARAN., AGED 48 YEARS,
S/O.PRABHAKARAN, VAISHNAVAM VEETTIL, PUTHIYAVILA MURI,
KANDALLOOR VILLAGE, ALAPPUZHA.
BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 01-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sdr/-
ALEXANDER THOMAS, J.
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Crl.R.P.No.601 of 2015
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Dated this the 1st 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.642 of 2011 on the file of the Judicial First Class Magistrate Court, Haripad, instituted on the basis of a complaint filed by the second respondent herein.
2. The trial court, as per the impugned judgment rendered on 22.10.2012, had convicted the petitioner for the abovesaid offence and had sentenced her to undergo simple imprisonment for a period of six months and to pay fine of Rs.3,75,000/- as compensation to the complainant in terms of Section 357(1)(b) of the Cr.P.C.and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a period of two months. Aggrieved thereby the petitioner had preferred Criminal Appeal No.387 of 2012 before the Sessions Court, Mavelikara. The appellate court concerned (Court of the Additional Sessions Judge-I, Mavelikara), as per the impugned judgment rendered on 14.1.2015, had dismissed the appeal confirming the conviction and modifying the sentence to undergo imprisonment till Crl.R.P.601/15 ::2::
the rising of the court and to pay a fine of Rs.3,75,000/- and in default to undergo simple imprisonment for two months. Amount of fine will be treated as compensation to the complainant. 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. This revision petition has been filed on 20.5.2015.
Thereafter, the matter had come up for admission before this Court on 21.5.2015 and as there was no representation for the petitioner, the case was directed to be posted when moved again. Thereafter, this Court as per the order dated 21.10.2016 has referred this case along with some other cases for resolution of the Lok Adalat. Though the second respondent/ complainant was present, the petitioner/accused was absent and therefore, the Adalat had returned back the case file to the court. Later, this case was posted for admission on 31.10.2017 on which day the case was adjourned to 1.11.2017 (today) at the request of the petitioner's counsel. So far notice has not been issued to R2/complainant, there is no appearance for that party.
4. Heard Sri.T.S.Harikumar, learned counsel appearing for the revision petitioner/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State.
Crl.R.P.601/15 ::3::
5. The brief of the case of the complainant is to the effect that the complainant and the accused were known to each other and the accused on 30.11.2007 had borrowed an amount of Rs.3,75,000/- from the complainant, with the assurance that the same will be repaid. Later, when the complainant made repeated demands, the accused had thereafter handed over the instant Exhibit-P1 cheque dated 15.3.2010 for Rs.3,75,000/-. The said cheque has been drawn from the account of the accused in favour of the complainant and the cheque when presented for encashment, cheque resulted in dishonour on the ground of 'insufficiency of funds' as born out by Exhibit-P2 Bank memo dated 13.9.2010. Thereafter, the complainant had issued Exhibit-P5 statutory demand notice under Section 138 (b) of the Negotiable Instruments Act, calling upon the accused to pay off the amount covered by the dishonoured cheque within a period of 15 days from the date of receipt of the said notice. The said notice was sent by registered post and was returned with the endorsement 'unclaimed'. Since there was no response from the petitioner and as she had not paid the amount, the complainant after following the requisite procedural formalities, has instituted the present complaint which led to the conduct of the trial.
6. During trial, the complainant has examined himself as PW1 and has marked Exhibits-P1 to P9 documents. The defence has Crl.R.P.601/15 ::4::
marked Exhibits-D1 and D2 documents. No oral evidence has been adduced on behalf of the defence.
7. PW1 (complainant) has broadly deposed in tune with the contents of his complaint. He has deposed that on 30.11.2007, the accused had borrowed the amount of Rs.3,75,000/- from him with a promise that the amount will be paid and later the instant cheque dated 15.3.2010 was handed over to him which resulted in dishonour. The main defence taken up by the accused at the time of cross examination of PW1 is to the effect that she never had any transaction directly with the complainant and that earlier she had taken a personal loan from the wife of the complainant at which point of time she was constrained to hand over the present cheque as a blank one and that though she had repaid the money to the complainant's wife, the cheque has been misused for the institution of the present complaint. Another contention raised by the defence is to the effect that Exhibit-P5 statutory demand notice was sent in her wrong address and that it was never been served on her.
8. It appears that the defence of the accused is to the effect that a completely blank cheque was handed over to the complainant's wife, the same has been misused and even the signature was disowned by the accused. However, no effort has been taken by the Crl.R.P.601/15 ::5::
accused to establish the veracity of her contention that even the signature is not that of hers. No clinching circumstance could be brought in evidence even remotely to sustain the tenability of such a defence suggestion that she had a personal loan transaction with the complainant's wife and at that point of time, a blank cheque was given. Ordinarily, when a cheque is demanded as security, any prudent person could be expected to demand that it should be a blank, but signed cheque. Therefore, even the very nature of the defence that a completely blank cheque was given, lacks total credibility with both the courts below. Thus the courts below have taken the stand that except baldly raising such defence contentions, no clinching circumstance could be brought out before the courts below even to remotely sustain the credibility of such a suggestion and that the said defence contention has remained only in the realm of a suggestion. It is in the light of these aspects, the courts below have taken the view that the complainant has broadly proved his case and that the accused is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. As regards the contention regarding the issuance of Exhibit-P5 statutory demand notice, it has come out in evidence that the address shown in Exhibit-P5 notice is the same as in Exhibit-P7 Bank account opening statement of the accused. Therefore, the said Crl.R.P.601/15 ::6::
contention of the accused has also been rightly rejected by both the courts below. In these circumstances, this Court is not in a position to interfere with the considered findings of fact regarding the conviction of the petitioner.
9. As regards the question of sentence, it is seen that the trial court has sentenced the petitioner to undergo simple for a period of six months and to pay a fine of Rs.3,75,000/- and in default thereof, to undergo simple imprisonment for a period of two months and the fine amount was directed to be disbursed as compensation to the complainant in terms of under 357(1)(b) of the Cr.P.C. The appellate court has reduced the substantive sentence of simple imprisonment for 6 months to imprisonment till the rising of the court. The fine amount of Rs.3,75,000/- with the default sentence clause has been confirmed by the appellate court. Therefore, the substantive sentence of imprisonment till the rising of the court and the fine amount which is only equal to the cheque amount are said to be in any manner excessive or disproportionate. On the other hand, the courts below have been quite liberal in not awarding any interest, as it has been held in many decisions by the Apex Court as in R.Vijayan v. Baby and another reported in (2012) 1 SCC 260. Apart from the cheque amount, the criminal court would award even interest @9% on the cheque amount Crl.R.P.601/15 ::7::
from the date of the cheque up to the date of realisation. Therefore, there is no ground to interfere with the sentence and fine amount.
10. Faced with the situation, Sri.T.S.Harikumar, learned counsel appearing for the petitioner/accused would submit that in case, this Court is inclined to affirm the conviction and sentence in this case, then at least three months' time may be granted to the petitioner to pay the amount. Having regard to the facts and circumstances of this case, this Court is inclined to grant three months' time as now sought for by the petitioner.
11. Accordingly, the following directions and orders are passed :
(i) The impugned conviction, the substantive sentence of imprisonment till the rising of the court, fine amount of Rs.3,75,000/-, default sentence clause of two months' simple imprisonment, etc. are confirmed.
(ii) The petitioner is given three months' time from 15.11.2017 to remit the fine amount of Rs.3,75,000/- before the trial court.
The petitioner shall personally appear before the trial court at 11 A.M. on any day on or before 17.2.2018 to suffer the substantive sentence of simple imprisonment till the rising of the court and to remit the fine amount of Rs.3,75,000/-.
(iii) On realising the said amount, the trial court should disburse the said amount as compensation under Section 357(3) of the Cr.P.C. to the complainant after issuing him notice of intimation to receive the said amount. Needless to say on default of the Crl.R.P.601/15 ::8::
petitioner to pay the abovesaid amount, she will have to suffer simple imprisonment for a period of two months as ordered in the impugned judgment.
(v) Until 17.2.2018, all further coercive steps including non bailable warrant that may be pending against the petitioner for execution of the impugned sentence in this case will stand deferred.
(vi) 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 will forward a copy of this order to R2/complainant as well as the trial court for necessary information and appropriate action.
With these observations and directions, the Criminal Revision Petition will stand finally disposed of.
ALEXANDER THOMAS JUDGE csl