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2017 DIGILAW 1223 (KER)

Johnson, Kottayam District v. State of Kerala

2017-09-18

ALEXANDER THOMAS

body2017
JUDGMENT : 1. The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.86 of 2013 on the file of the Judicial First Class Magistrate Court- II, Vaikom, instituted on the basis of a complaint preferred by the second respondent herein. 2. The trial court, as per the impugned judgment rendered on 28.9.2015, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo imprisonment till the rising of the court and to pay fine of Rs.1,36,782/- to the complainant under Section 357(1) (b) of the Cr.P.C. and in default of payment of fine, the accused was ordered to undergo simple imprisonment for six months. 3. Aggrieved thereby the petitioner had preferred Crl.Appeal No.156 of 2015 on the file of the Sessions Court, Kottayam. The appellate court concerned (Court of the Additional Sessions Judge-II, (Special) Kottayam), as per the impugned judgment rendered on 27.4.2017, had confirmed the conviction and modified the sentence to imprisonment till the rising of the court and to pay fine of Rs.91,188/- to the complainant and in default thereof, to undergo simple imprisonment for three months. The fine amount, if realised, will be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. It is challenging the verdicts of both the courts below that the petitioner has preferred the instant Crl. Revision Petition by taking recourse to the provisions contained in Sections 397 and 401 of the Code of Criminal Procedure. 4. Heard Sri.Alex.M.Scaria, learned counsel appearing for the revision petitioner/accused, and Sri. Saigi Jacob Palatty, learned prosecutor appearing for R1/State. 5. In the nature of the orders proposed to be passed in this revision petition, notice to R2/complainant will stand dispensed with. 6. The brief of the allegations in the complaint is to the effect that the complainant is a Co-operative Agricultural and Rural Development Bank registered under the provisions of the Kerala Co-operative Societies Act, 1969 and that the accused had availed a trade loan, viz. loan No.238/VTL from the complainant Service Co-operative Bank and for default on his part, he had later settled the liability in that loan account by issuing the instant Exhibit-P1 cheque dated 15.3.2012 for the amount of Rs.91,188/- which was due to the complainant. The cheque when presented resulted in dishonour as per Exhibits-P2 and P3 memos. loan No.238/VTL from the complainant Service Co-operative Bank and for default on his part, he had later settled the liability in that loan account by issuing the instant Exhibit-P1 cheque dated 15.3.2012 for the amount of Rs.91,188/- which was due to the complainant. The cheque when presented resulted in dishonour as per Exhibits-P2 and P3 memos. Thereupon the complainant Co-operative Bank had issued Exhibit-P4 statutory demand notice dated 24.3.2012 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 notice sent by registered post was returned as unclaimed as per Exhibit-P5 dated 3.4.2012. After fulfilling the requisite formalities in that regard, the complainant has filed the present complaint which has resulted in the trial. 7. During trial, the Secretary of the complainant Co-operative Society Bank has been examined as PW1 and has marked Exhibits P1 to P7 documents. The defence had not adduced any oral or documentary evidence. 8. The petitioner had challenged the competence of PW1 to prosecute and institute the present complaint. PW1 has deposed that he is the Secretary of the complainant Co-operative Bank. Exhibit-P6 is the copy of the bye-laws of the complainant Co-operative Bank registered in terms of the provisions contained in the Co-operative Societies Act and the Rules framed thereunder. The said bye-laws unequivocally disclosed that the Secretary of the complainant Bank is the person who has to conduct litigation before the courts concerned. It is argued that PW1 has not adduced any evidence to show that he has been duly appointed as the Secretary of the Bank. The courts below have found that the testimony of PW1 that he has been the Secretary of the complainant Bank since the last four years remains unchallenged in evidence. It is on this basis both the courts below have found that it is quite safe to conclude that PW1 is duly authorised in law to represent the complainant Bank and on this basis the said contention of the accused was overruled. This Court is of the considered opinion that the said view rendered by both the courts below cannot be said to be illegal in view of the reasons in that regard disclosed in the impugned judgments. This Court is of the considered opinion that the said view rendered by both the courts below cannot be said to be illegal in view of the reasons in that regard disclosed in the impugned judgments. As regards the liability, there is not much serious dispute of the fact that the petitioner had taken a trade loan as stated above from the complainant Bank and that he had defaulted. Exhibit-P7 is the liability statement of accounts which shows that the amount due from the petitioner/accused as on the date of issuance of the cheque is Rs.91,188/-. It has been contended by the petitioner's counsel that the issuance of Exhibit P1 cheque and its dishonour, etc. are not reflected in Exhibit-P7 statement. That apart the primary aspect which has been relied on by both the courts below is as to whether Exhibit-P7 would reflect the liability amount that was due from the accused to the complainant Bank as on the date of Exhibit-P1 dishonoured cheque. On this factual aspect, both the courts below were satisfied that the amount covered by Exhibit-P1 cheque is reflected as liability in Exhibit-P7 liability statement. It is seen that during the cross examination of PW1, no case has been set up by the accused that the liability as on the date of issuance of the cheque is less than the amount reflected in Exhibit-P1 cheque. Therefore, the said contention of the petitioner is only to be overruled. It is on the basis of these considered findings of facts that both the courts below have found that the petitioner is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. The said factual finding regarding conviction of the petitioner cannot be said to be grossly perverse or illegal. 9. In the facts and circumstances of the case, this Court is not in a position to interfere with the said finding of conviction against the petitioner by exercise of the revisional powers conferred on this Court. As regards the question of sentence, it is seen that the trial court had sentenced the petitioner to imprisonment till the rising of the court and to pay 1½ times the cheque amount and had thus imposed a fine amount of Rs.1,36,782/- with a default clause of simple imprisonment for six months. As regards the question of sentence, it is seen that the trial court had sentenced the petitioner to imprisonment till the rising of the court and to pay 1½ times the cheque amount and had thus imposed a fine amount of Rs.1,36,782/- with a default clause of simple imprisonment for six months. The appellate court while upholding the conviction has rightly scaled down the fine amount from Rs.1,36,782/- as imposed by the trial court to Rs.91,188/- (which is the cheque amount). The appellate court has also confirmed the sentence of imprisonment till the rising of the court. The default sentence clause has been reduced from six months to three months. 10. Having regard to the fact that the default amount is only Rs.91,188/-, this Court is of the view that the substantive sentence of imprisonment till the rising of the court could be set aside and the petitioner could be sentenced to pay fine of Rs.91,188/- and in default thereof, he will have to suffer simple imprisonment for a period of two months. The impugned judgments will stand modified as indicated herein above. Sri.Alex.M.Scaria, learned counsel appearing for the petitioner/accused would submit that in case this Court is so inclined to affirm the conviction and sentence, then this Court may grant time up to 31.3.2018 as there is a likelihood of the Co-operative Department and the Co-operative Banks launching the “Aswas scheme” in January 2017 for repayment of arrears and that the petitioner then may be able to get some benefits out of that. It is thus made clear that in case any such scheme is framed by the complainant Bank and in case the petitioner is eligible for securing any benefit in that regard, then nothing in this order will prevent the complainant and the accused from settling the disputes whereby the complainant Bank could in its discretion permit the accused to pay a lesser amount towards liability of the transaction in question. In case such settlement is worked out on the basis of any such scheme, then the petitioner is permitted to pay the amounts directly to the Bank and produce receipt in that regard before the trial court and the said receipt issued by the complainant Bank should be treated by the trial court as full compliance of the direction to pay the fine amount, even if the amount so paid is less than of the aforementioned fine amount imposed as per the impugned judgment. The petitioner shall personally appear before the trial court at 11 A.M. on 7.4.2018 to satisfy the said court about payment of the above amounts to the complainant Bank as directed herein above. 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 as directed herein above. Until 7.4.2018, all further coercive steps for execution of the impugned sentence in this case will stand deferred. With these observations and directions, the Crl. Revision Petition will stand finally disposed of.