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2017 DIGILAW 203 (KER)

ANTO PAUL v. VITHAYATHIL SALES CORPORATION

2017-01-27

ALEXANDER THOMAS

body2017
ORDER: This revision is directed against the conviction and sentence imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act, as per the impugned judgment dated 31.3.2006 of the Judicial First Class Magistrate's Court-II, Kochi, in Calendar Case, C.C.No.1073/2002. The trial court, while convicting the petitioner, had sentenced him to undergo simple imprisonment for one year under Sec.138 of the Negotiable Instruments Act and had further directed that he should pay compensation of Rs.2.4 lakhs, which shall be payable to the complainant as per Sec. 357(3) of the Cr.P.C., and in default thereof, the petitioner was ordered to suffer simple imprisonment for a further period of six months. 2. The appellate court (Court II Addl. Sessions Judge, Ernakulam) as per the impugned judgment dated 3.3.2007 in Crl.Appeal No.440/2006, while affirming the conviction, had modified the sentence by ordering that the petitioner is sentenced to imprisonment till the rising of the court and to pay compensation of Rs. 2.4 lakhs to the complainant under Sec. 357(3) of the Cr.P.C., and in default of which, he was sentenced to undergo simple imprisonment for six months. It is this conviction and sentence that is impugned in the instant revision petition. 3. The gist of the prosecution case is that the complainant is a partnership firm dealing in the business of the wholesale textiles and that the accused is the proprietor of the firm, by name, "M/s.Kuttichakku Lona Anthony Sons", which used to purchase goods on credit basis from the complainant and that, during the course of the said dealings between the parties, a sum of Rs.1,97,900/- was payable by the accused to the complainant. That thereupon the accused has issued a cheque drawn on South Indian Bank Ltd., Thrissur, for the said amount and on being presented, the cheque was dishonoured for want of sufficient funds. Statutory notice was issued, to which the accused had not responded, which resulted in the institution of the instant complaint. 4. The partner of the complainant firm was examined as P.W-1 and the complainant had also adduced documentary evidence as Exts.P-1- to P-6. The accused had adduced evidence as DW1 and had produced Exts.D-1 and D-2 documents. Statutory notice was issued, to which the accused had not responded, which resulted in the institution of the instant complaint. 4. The partner of the complainant firm was examined as P.W-1 and the complainant had also adduced documentary evidence as Exts.P-1- to P-6. The accused had adduced evidence as DW1 and had produced Exts.D-1 and D-2 documents. P.W-1 had deposed that the accused had purchased textiles goods on credit basis from the complainant firm and to pay the liability in that regard, the accused had issued Ext.P-2 cheque for Rs.1,97,900/-, which resulted in the dishonour and the institution of the impugned complaint. It was sought to be suggested by the defence during the cross examination of P.W-1 that the accused is not the proprietor of the firm concerned and that it was a firm, which was already dissolved and that the accused did not purchase any goods from the complainant and that the accused had not issued any such cheque. However, the signature of the cheque was not denied. It was not suggested by the defence as to, on what circumstances the cheque happened to be in the custody of the complainant. In the written statement filed by the accused under Sec.313 Cr.P.C., he had stated that the firm in question was one to which his father and uncles were partners and there were disputes between the partners and that the hostile partners had fraudulently taken blank cheques and conspired to foist false case. However, while giving sworn evidence as D.W1, the accused deposed that the cheque was somehow lost. Since the signature on the cheque was admitted and there was no credible explanation as to how the cheque reached the custody of the complainant, the trial court found that these circumstances would go a long way to prove the issuance and execution of the cheque. Moreover, the trial court found that the evidence tendered by P.W-1 is credible and believable, wherein P.W-1 had clearly stated that the accused used to purchase goods and had issued the present cheque. It is also on record that the accused had admitted that his father was doing business in textile goods and therefore the trial court came to the conclusion that there is every chance for the accused to come and purchase textile goods from the complainant. It is also on record that the accused had admitted that his father was doing business in textile goods and therefore the trial court came to the conclusion that there is every chance for the accused to come and purchase textile goods from the complainant. Though strenuous efforts were taken to cross-examine P.W.1 in detail, nothing came up so as to discredit his testimony. In these circumstances, both the trial court and appellate court came to the concurrent finding that the issuance and execution of the cheque is duly proved and the complainant is entitled to presumption under Sec.139 of the Negotiable Instruments Act. As regards the issue, as to whether the accused had rebutted this presumption, the trial court found that the accused had not even bothered to send any reply notice to the statutory notice of the complainant. The explanation for this omission given by the accused is that he had met one Francis, Johnson and the complainant and that he assumed that the prosecution would not be initiated by the complainant. No such persons, Fraincis or Johnson were examined on behalf of the defence. Since the accused had admitted the signature and he could not properly explain as to how the cheque came in the possession of the complainant, the trial court found that the excuses projected by the accused are only lame excuses to wriggle out of the liability. Though the accused had produced Ext.D-1 and D-2 documents to show that M/s.Kuttichakku Lona Anthony Sons, was dissolved, the trial court found that it is immaterial since P.W-1 only stated that the accused purchased goods, representing that he was the proprietor of the said firm. Therefore, the trial court found that it is unnecessary to inquire as to the correctness or otherwise of the assertion of the defence that the firm of the accused was dissolved. It is in the light of these aspects, that both the courts below have come to the concurrent findings of fact regarding the sufficient proof on the vital question of issuance and execution of the cheque in question. Both the courts below also found that all necessary statutory formalities for initiation of the complaint under Sec.138 of the Negotiable Instruments Act have also been satisfied in the instant case. 5. Both the courts below also found that all necessary statutory formalities for initiation of the complaint under Sec.138 of the Negotiable Instruments Act have also been satisfied in the instant case. 5. On a perusal of the impugned judgments as well as the materials and pleadings on record, this Court is of the considered view that the revision petitioner has not disclosed any grounds so as to come to the conclusion that those concurrent findings of fact arrived at by both the courts below are tainted by gross perversity or unreasonableness. No crucial or relevant evidentiary aspects have been shut out by both the courts below. Therefore, the impugned finding of conviction is not liable to be interfered with in these revisional proceedings. 6. As regards the question of sentence, the trial court had sentenced the accused to undergo simple imprisonment for one year and the accused shall pay compensation of Rs. 2.4 lakhs, failing which the accused shall suffer simple imprisonment for a further period of six months etc, However, while affirming the conviction, the appellate court has carefully assessed the matter and found that the sentence imposed by the trial court is slightly excessive and had accordingly ordered that the substantive sentence of one year imposed on the petitioner will stand modified and reduced as imprisonment till rising of the court and to pay compensation of Rs. 2.4 lakhs. The cheque amount in question comes to Rs.1,97,900/-. Ext.P-2 cheque is dated 2.8.2002. The Apex Court has in various judgments held that fine amount or compensation amount as the case may be in prosecution under Sec. 138 of the Negotiable Instruments Act could be the cheque amount + 9% interest from the date of cheque upto date of realisation. Going by those judgments, it cannot be said that the compensation amount of Rs.2.4 lakhs is any way excessive or disproportionate. The cheque was issued as early as on 2.8.2002. The revision petition was filed early as on 17.5.2005 and thereafter, the petitioner has not even bothered to move the revision petition. Ordinarily, for this long lapse of time, the complainant can certainly ask for interest. In these circumstances, this Court is of the view that the compensation amount fixed by both the courts below would not require any revisional interference now. Ordinarily, for this long lapse of time, the complainant can certainly ask for interest. In these circumstances, this Court is of the view that the compensation amount fixed by both the courts below would not require any revisional interference now. In this view of the matter, this Court finds that neither the conviction nor the sentence deserves to be interfered with in this revision petition. Accordingly, the revision petition stands dismissed.