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2006 DIGILAW 459 (KER)

C. Bhaskaran Nair v. M. Abdul Karim

2006-07-25

R.BASANT

body2006
Judgment :- This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I.Act. The cheque is for an amount of Rs.1,00,000/-. The cheque bears the date 05/03/1993. The cheque was dishonoured on the ground of insufficiency of funds. Notice of demand was sent to the accused allegedly in the correct address. It was returned with the endorsement that the notice was not claimed. The complaint came to the court with this complaint scrupulously observing the statutory timetable. The complainant examined himself as PW1 and proved Exts.P1 to P4. The accused examined himself as PW1 and proved Exts.P1 to P4. The accused examined Dws1 and 2 and proved D1 to D4. 2. Two contentions appear to have been raised before the courts below. The first contention is that the cheque was not issued for the due discharge of any legally enforceable debt or liability. There was a transaction between the complainant and the son of the accused. A blank signed cheque was handed over as security in that transaction. The liability under that transaction was already discharged but the blank signed cheque was not returned. It was misutilised by the complainant to stake the present false and untenable claim. This is the first contention. 3. Secondly, it was contended that the notice of demand was not issued in the correct address of the accused. It was sent in the address “Bhaskaran Nair, S/o. Shankaran Nair, Mukunda Sadanam, Manimooli, Nailambur”. That the name of the petitioner is Bhaskaran Nair is not disputed. There is no dispute regarding the father’s name also. That Mukunda Sadanam is a house belonging to the sisters of the wife of the complainant is not disputed. But according to the petitioner, he was not residing in Mukunda Sadanam and was instead residing in Ambika Sadanam in Edavanna village. He examined Dw1 and proved D1 to D3 to show the ownership of three houses in the same compound, which bear the name Ambika Sadanam. He examined DW2 and proved D4 in support of his contention that he resides in Edavanna village and not at Manimooli. 4. The courts below considered the above contentions anxiously and came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I. Act. He examined DW2 and proved D4 in support of his contention that he resides in Edavanna village and not at Manimooli. 4. The courts below considered the above contentions anxiously and came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I. Act. Accordingly, they proceeded to pass the impugned concurrent judgment. 5. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contentions that were raised before the courts below. The first contention is found to be absolute without any merit. We primarily have the evidence of PW1 about the circumstances under which Ext.P1 cheque written on a cheque leaf issued to the petitioner by his bank to operate his account, with the admitted signature of the petitioner affixed thereon, found its way from the possession of the petitioner to the possession of the complaint. The oral evidence of PW1 is eminently supported his liability to produce such cheque Ext.P1. The theory advanced by the accused that Ext.P1 was handed over as a blank signed cheque as security when his son had entered into an earlier transaction cannot be readily swallowed. The defence that a signed blank cheque was handed over by an account holder is inherently a suspicious one and must be approached with grant care and caution. If the laudable commercial morality which the legislature wants to usher in by introduction of Section 138 of the N.I. Act in the statute book were to prevail among the polity such an irresponsible, casual and indifferent approach by account holders deserves to be discouraged. No account holder is expected to deal with the cheques in such a casual, careless, irresponsible and indifferent manner. Such a defence may still not be impossible in a prosecution under Section 138 of the N.I. Act. But the burden must certainly rest heavily on the shoulders of such an indictee who wants to attribute such an irresponsible conduct to himself to claim absolution from culpable liability. Such a defence may still not be impossible in a prosecution under Section 138 of the N.I. Act. But the burden must certainly rest heavily on the shoulders of such an indictee who wants to attribute such an irresponsible conduct to himself to claim absolution from culpable liability. In the facts and circumstances of this case, the said version advanced by the accused cannot be swallowed by a reasonable and prudent mind, whose standards the courts are expected to adopt and follow while considering the rival sets of evidence to decide whether the facts are “proved” to the satisfaction of the definition of the expression proved in Section 3 of the Evidence Act. The theory that even when the liability was entirely discharged by the son of the petitioner, the cheque continued to remain with the complaint is inherently improbable and unworthy. The same cannot be accepted. The first contention raised must hence fall to the ground. 6. The second contention raised is that the petitioner does not reside at the address shown, that is at Manimooli, Nilambur. We have the evidence of PW1 that is the address at which the petitioner resides. Notice of demand issued in that address was not returned with the endorsement that there is no such addressee residing at the address shown in the notice. It was returned only with the endorsement that the addressee did not claim the notice and the persons in occupation did not receive the intimation. The Postman was hence compelled to go twice to the said address, but was unable o meet the addressee. It is significant that the notice was not returned with the endorsement that there is no such addressee at the said address. It is not as though the petitioner contends that he has no connection whatsoever with the said address. Admittedly Mukunda Sadanam is the common name for the house in a compound which belong to the wife of the petitioner and her sisters. There is nothing to show the name of the wife of the accused. The name of the owners shows in D1 to D3 and the evidence of Dw1 does not at all show that the petitioner’s wife is not one of the owners. There is nothing to show the name of the wife of the accused. The name of the owners shows in D1 to D3 and the evidence of Dw1 does not at all show that the petitioner’s wife is not one of the owners. We do also have the further circumstance that PW1 asserted in evidence that he knows the residence of the accused, that he went to the said Mukunda Sadanam where the petitioner resides and he found the petitioner there. We have also the circumstance that in the light of all this burning controversy, in the memorandum of appeal and in this revision petition, the petitioner has chosen to describe himself as son of Sankaran Nair, residing at Mukunda Sadanam, Manimooli, Nilambur. Due significance must certainly be attached to that subsequent conduct of the petitioner/accused while considering the challenge raised on the ground that there is no proper notice. 7. Reliance is placed on the decision reported in Suresh Kumar v. Sasi (2003 (2) KLT 367). Precedents galore to indicate that proper notice of demand must be given. There can be no quarrel on that proper notice of demand must be given. There can be no quarrel on that proposition. The short question is whether in the instant case notice has been issued in the correct address. I have already taken note of the circumstances against the petitioner on that aspect which the courts below have chosen to rely on. The counsel for the petitioner contends that evidence of DW1 and 2 and D1 to D4 are sufficient to show that the petitioner does not reside at Mukunda Sadanam and resides in another village of Edavanna. The courts below did advert to the evidence of DWs1 and 2 and D1 to D4. The evidence of Dw1 and D1 to D3 cannot at all lead a prudent mind to the conclusion that the petitioner does not reside in Mukunda Sadanam. The names of the owners of the house mentioned in D1 to D3 are no guarantee or assurance of the contention of the petitioner that he does not reside at that address. It is not even asserted specifically that the petitioner’s wife is not one of the owners. Due presumption under Section 114 of the Evidence Act deserves to the drawn on the basis of the endorsement written on Ext.P4 notice by the Postman. It is not even asserted specifically that the petitioner’s wife is not one of the owners. Due presumption under Section 114 of the Evidence Act deserves to the drawn on the basis of the endorsement written on Ext.P4 notice by the Postman. If there were no such person at the address the notice would have been returned in the ordinary course with the endorsement “No such Addressee”. So far as the evidence of DW4 is concerned, he concedes that he cannot specify the number or details of the building in which the petitioner resides. Ration card, voters list etc have not been seen by that witness or produced before court to show that the petitioner resides in Edavanna Village. Merely because the petitioner hails from Edavanna village, a certificate like D4 can be issued to him. Suffice to say that I am unable to find any reason justifying interference with the concurrent conclusion of the courts below at this third tier of criminal litigation. Evidence of DWs1 and 2 and D1 to D4 are not according to me sufficient to dislodge the weight of evidence tendered by PW1 and the presumption which must essentially arise from the endorsement on Ext.P4 notice of demand by the Postman concerned. 8. I must also alertly note that the revisional powers of superintendence and correction are not to be lightly invoked. Any and every error, assuming that an error has been committed by the courts below, is not sufficient justification for invoking the revisional powers. The conscience of the court must be satisfied that there is illegality, irregularity, impropriety or incorrectness and that such vice in turn leads to miscarriage of justice to justify such invocation of revisional powers. I am not able to discover or invent any such vice resulting in miscarriage of justice by the course adopted by the courts below in not accepting and acting upon evidence of DWs 1 and 2 and Exts.D1 to D4 and in choosing to exercise the discretion in favour of the complaint accepting the oral evidence of PW1 on the basis of the various circumstances which I have already referred to. The challenge in revision must hence be found to be not maintainable. 9. According to me it may not be inapposite in this context to refer to the scheme of Section 138 of the N.I.Act. The challenge in revision must hence be found to be not maintainable. 9. According to me it may not be inapposite in this context to refer to the scheme of Section 138 of the N.I.Act. Definition of the offence and punishment for such offence appears in the body of Section 138 which I extract below. “138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or I part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount is arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed the offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a terms which may extend to one amount of the fine which fine which may extend to twice the Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation: - For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.” (emphasis supplied) The offence is prescribed and punishment is stipulated in the body of the Section which is followed by the proviso which states that nothing contained in the section shall apply unless clauses a, b and c in the proviso are satisfied. The definition of the offence appears in the body of the Section. The proviso only insists on certain safeguards on satisfaction of which alone the main section will be applicable. The requirement of giving notice to the inductee is to held him to avoid the prosecution under Section 138 of the N.I.Act. It is not an empty or ritualistic formality. It is to give him time to avoid a prosecution by correcting an error and indiscretion. A fundamental question arises. What is the offence under Section 138 of the N.I. Act? The plain reading of the body of Section 138 can leave behind no doubt that the offence is dishonour of the cheque issued for the discharge of liability of a specified nature on the grounds specified in the Section. That is the offence. Proviso deals only with certain formalities to be complied with before a successful prosecution can be launched. They do not make or unmake the offence. The offence is already defined in the body of the Section. Proviso only incorporates certain conditions before a valid prosecution for the offence defined is launched. The point is that the offence defined has to do with the proviso. The proviso does not prescribe the ingredients of the offence. It only prescribes the procedural formalities to be satisfied before the prosecution is launched. While considering whether the mandates of the proviso have been satisfied, it cannot be lost sight of that they are not ingredients of the offence but only procedural safeguards to held an inductee to avoid prosecution. If that be so the Court of Revision has to apply its mind to the question whether the alleged infraction of the procedure has resulted in miscarriage of justice. 9. In the instant case, no court can afford to ignore the fact that even after the commencement of prosecution, the petitioner has not availed the opportunity to pay off the amount and discharge the liability. 9. In the instant case, no court can afford to ignore the fact that even after the commencement of prosecution, the petitioner has not availed the opportunity to pay off the amount and discharge the liability. Instead, he had chosen to raise a contention that no amount is liable to be paid which I have already found against. I look into aspect only to appreciate that the alleged failure to issue notice in the correct address (even if true) has not resulted in any miscarriage of justice in the instant case in as much as even after coming to know of the prosecution which has been launched the indictee has not chosen to pay the amount and claim mitigation of the offence. In this view of the matter also I am not persuaded to agree that the revisional powers are liable to be invoked – no failure of justice having resulted. 10. No other contentions are raised on merits. I am satisfied that the challenge against the verdict of guilty and conviction on merits must in these circumstances fail. 11. The learned counsel for the petitioner then prays that leniency may be shown on the question of sentence and some more time may be granted to pay the amount of compensation directed by the courts below. The petitioner now facts a sentence of S.I. for a period of three months. There is a further direction to pay the actual cheque amount of Rs.1,00,000/- as compensation and in default to undergo a S.I. for a period of two months. I have already adverted to principles governing imposition of sentence in a prosecution under Section 138 of the N.I. Act in the decision reported in Anil Kumar vs. Shammi (2002 (3) KLT 852). I am unable to find any compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. But the plight of the compliant deserves sympathy and consideration. He has been compelled to fight two rounds of unnecessary legal battle by now and to wait from May 2003 for the redressal of his grievances. Leniency can be shown to the petitioner provided he makes amends and compensates the victim adequately. Challenge against the sentence can succeed only to the above extent. 12. He has been compelled to fight two rounds of unnecessary legal battle by now and to wait from May 2003 for the redressal of his grievances. Leniency can be shown to the petitioner provided he makes amends and compensates the victim adequately. Challenge against the sentence can succeed only to the above extent. 12. In the nature of relief which I propose to grant, I am satisfied that it is not necessary to wait for issue and return of notice to the respondent/complainant. 13. In the result: a) This RP is allowed in part. b) The verdict of guilty and conviction under Section 138 of the N.I. Act is upheld. c) Sentence imposed is modified and reduced. In supersession of the sentence imposed by the courts below, the petitioner is sentenced to undergo imprisonment till rising of court. He is further directed to pay an amount of Rs.1,20,000/- as compensation under Section 357(3) Cr.P.C. and in default to undergo S.I. for a period of three months. If realized the entire amount shall be paid to the complaint as compensation. 14. The petitioner shall have time till 30/09/2006 to appear before the learned Magistrate and serve the modified sentence hereby imposed. The impugned sentences shall not be executed till that date. If the petitioner does not appear before the learned Magistrate on or before 30/09/2006, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.