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2017 DIGILAW 319 (KER)

BABY VARKEY v. P. R. SAROJANIAMMA

2017-02-15

ALEXANDER THOMAS

body2017
ORDER : The petitioner is the accused for offence under Sec.138 of the Negotiable Instruments Act in C.C.No.2918/2001 on the file of the Addl. Chief Judicial Magistrate's Court, Ernakulam, instituted on the basis of the complaint filed by the 1st respondent proprietary concern. The trial court, as per the impugned judgment rendered on 18.3.2006, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for a period of 3 months and also to pay fine of Rs.75,000/- and in default of payment of the fine, the accused was to undergo simple imprisonment for a further period of 3 months. The fine amount so realised shall be disbursed to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.299/2006 before the appellate court concerned. The appellate court concerned [Court of Addl. Sessions Judge (Ad hoc-II), Ernakulam] as per the impugned judgment rendered on 20.12.2006 had confirmed the abovesaid conviction, but had slightly modified the sentence by ordering that the substantive imprisonment for 3 months' simple imprisonment ordered by the trial court will stand reduced to one month and the direction to pay fine of Rs.75,000/- along with the default sentence of 3 months and that the fine amount is to be given to the complainant, as compensation this Court, have also been confirmed. It is aggrieved by the said judgments of the courts below in the matter of the impugned conviction and modified sentence, that the petitioner has preferred the instant revision petition. 2. Heard Sri.Vijay Mathews, learned counsel appearing for the petitioner accused, Sri.R.Rajagopal, learned counsel appearing for the 1st complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. The gist of the prosecution case is that towards discharge of liability owed by the accused to the complainant, the revision petitioner accused has issued Ext.P-2 cheque dated 4.9.2001 for amount of Rs. 60,000/- in favour of the complainant. The complainant presented the said cheque for encashment, which resulted in dishonour due to sufficiency of funds in the account. The complainant had issued statutory demand notice (Ext.P-5) dated 3.11.2001 as envisaged under Sec.138 proviso (b) of the N.I. Act calling upon the accused to make payment of the cheque amount within 15 days. The accused had refused to receive the said notice though he was intimated by the postal authorities on 5.11.2001. The complainant had issued statutory demand notice (Ext.P-5) dated 3.11.2001 as envisaged under Sec.138 proviso (b) of the N.I. Act calling upon the accused to make payment of the cheque amount within 15 days. The accused had refused to receive the said notice though he was intimated by the postal authorities on 5.11.2001. Thereafter, since the accused had not discharged the liability, the complainant has initiated proceedings, which resulted in the present complaint as well as the trial. 4. Before the trial court an employee of the complainant proprietary concern was examined as P.W-1 and prosecution had marked Exts.P-1 to P-11 documents. The defence had not adduced any evidence. 5. Before the trial court P.W.1, who is an employee of the complainant proprietary concern, had given evidence that the complainant is the proprietrix of the proprietary concern, which has small scale units manufacturing various types of organic manure and that the accused had regular business transactions with the complainant firm and used to purchase goods on credit basis and in one such transaction, towards part payment of such liability, he had issued Ext.P-2 cheque dated 4.9.2001 for Rs.60,000/- drawn in favour of the complainant, which resulted in the dishonour, etc. He had given evidence broadly in continuation of the contents of the complaint. More particularly, P.W.1 has also stated that Ext.P-8 is the order form bearing No.1002 dated 10.4.2000, by which, the accused had placed orders for products worth Rs. 51,250/- and it was delivered on 25.4.2000 as endorsed in Ext.P-8. Further that the goods for which orders were placed as per Ext.P-8 were supplied and delivered to the accused by Ext.P-9 credit bill No.76 dated 25.4.2000 for the abovesaid amount and Ext.P-9 is the carbon copy of bill No.76 taken on 25.2.2000. That the accused had acknowledged the receipt of the goods in those documents in good condition as borne out from those documents. Further that the accused had also placed orders with the complainant for products worth Rs.60,000/- vide Ext.P-10 order form No.1014 dated 1.10.2000. The said goods for the abovesaid order were supplied and delivered by way of Ext.P-11 credit bill dated 9.10.2000 for Rs. 60,000/-, etc. A bare perusal of those documents would show that it bears also the signature of the accused. The said goods for the abovesaid order were supplied and delivered by way of Ext.P-11 credit bill dated 9.10.2000 for Rs. 60,000/-, etc. A bare perusal of those documents would show that it bears also the signature of the accused. That the accused had acknowledged receipt of the goods in good condition as borne out by those documentary evidence as per Ext.P-11 and the total amount due to the complainant by way of sale of goods evidenced by Exts.P-9 to P-11 comes to Rs.1,11,250/- That the accused had paid an amount of Rs. 34,450/-on 14.11.2010 and amount of Rs. 16,300/- was paid on 18.11.2000 towards part payment of the abovesaid amount due to the complainant and thus the accused was liable to pay the balance amount of Rs.60,000/- due to the complainant along with interest. In the light of these circumstances that Ext.P-2 cheque dated 4.9.2000 was executed and issued by the petitioner accused in favour of the complainant towards the said balance amount of Rs.60,000/- due to the complainant from the accused, on account of the abovesaid transactions borne out by Ext.P-8 to P-11. 6. A perusal of the cross examination of P.W-1 would show that the main attempt of the defence was to make a suggestion that there was an understanding between the parties that the goods which are not fully sold by the accused will be taken back by the complainant and that the goods in question were not fully sold and some were bad quality and that the complainant had not taken back those goods and impliedly thereby suggesting that there was no liability for the accused. P.W-1 had clearly stated that if at all any such arrangements, the same would have been reflected in the letter issued by the complainant firm and that therefore the petitioner is liable for the transactions covered by Exts.P-8 to P-11. Except making such bald suggestions, the petitioner has not been able to bring out any material factual circumstances so as to vindicate his defence suggestion. The accused has also not adduced any positive evidence to even remotely establish the factual basis of the defence suggestion put forward while cross examining P.W-1 7. Except making such bald suggestions, the petitioner has not been able to bring out any material factual circumstances so as to vindicate his defence suggestion. The accused has also not adduced any positive evidence to even remotely establish the factual basis of the defence suggestion put forward while cross examining P.W-1 7. It is in the light of these facts and circumstances that both the courts below have come to the considered conclusion that the complainant has clearly proved their case regarding the transactions and the liability owed by the petitioner to the complainant and regarding the execution and issuance of the cheque in question. It is also relevant to note that in respect of the above referred evidence given by P.W-1 in chief examination regarding Exts.P-8 to P-11 and about the acknowledgment given by the accused in those documents, there was not even a remote challenge made at the instance of the defence while cross examining P.W-1 regarding Exts.P-8 to P11. A bare perusal of the documents would also show that it contains the acknowledgment of the accused by way of his signature therein in the appended place. For the first time, the petitioner has raised a contention before this Court in the instant revision that there was some slight variation in the description of the payee in Ext.P-2 cheque. It is to be noted that Ext.P-2 was marked during the chief examination of P.W-1 and the accused while cross examining P.W.1 has not even remotely suggested to P.W-1 about the so-called variation in Ext.P-2 cheque. Since P.W-1 was not confronted with this aspect, it is absolutely improper for this Court to consider this contention for the first time at this very belated stage, that too, in this revision petition. Moreover, a perusal of Ext.P-2 cheque would show that the so- called overwriting is very minor in nature and it appears to be in the same ink and handwriting of the other entries therein and it appears that as against the payee proprietary concern's full name of "M/s. Biofert Decom Agro Systems", initially it was written in the cheque as "Biofert Agro Systems" and the omitted word, "Decom" has been added therein and it appears to be in the same handwriting and in the same ink. Therefore, such a contention cannot be entertained by this Court at this belated stage. 8. Therefore, such a contention cannot be entertained by this Court at this belated stage. 8. Yet another contention raised by the revision petitioner accused was that opportunity to adduce defence evidence was denied by the trial court, which is patent violation of the right of the defence to adduce evidence of their choice in a criminal trial, etc. The court below, while dealing with this contention has stated that Criminal Miscellaneous Petition No.1916/2006 was filed by the accused under Sec.315 of the Cr.P.C. at a belated stage and the trial court had dismissed the application on 14.3.2006 finding that the intention of the petitioner was to prolong the matter unnecessarily and also that the accused was absent on that day, etc. A perusal of the proceedings sheet would show that after the examination of complainant's witness as P.W-1 on the basis of affidavit filed in lieu of the chief examination, the evidence was closed. The accused has not then availed the opportunity for cross examining P.W-1. The trial court therefore had adjourned the case to 20.1.2006 for the questioning of the accused under Sec. 313. On 20.1.2006, there was no time for the court and questioning under Sec.313 was adjourned to 21.5.2006 and on 21.6.2006 the accused was present and he was questioned under Sec.313 Cr.P.C. At that point of time, the defence filed an application for cross examining P.W-1 and the trial court adjourned the case to 1.2.2006 for objection and hearing on that application. On 1.2.2006, the said application of the accused was allowed and P.W.1 was recalled and the defence was permitted to cross examine P.W.1. The defence has not made available any other witness and therefore the court was constrained to order that the defence evidence is closed and the case was adjourned for hearing to 3.2.2006. On 3.2.2006, there was no time for the court and the hearing was adjourned to 10.2.2006. It was on 10.2.2006 the accused had filed yet another petition to examine accused as defence witness, which was heard. The said application was dismissed by the trial court on 14.3.2006 on the ground that the intention of the petitioner accused was only to prolong the matter unnecessarily and also that the accused was absent on that day, etc. On 14.3.2006, the main matter was fully heard and judgment was reserved to be pronounced on 18.3.2006. The said application was dismissed by the trial court on 14.3.2006 on the ground that the intention of the petitioner accused was only to prolong the matter unnecessarily and also that the accused was absent on that day, etc. On 14.3.2006, the main matter was fully heard and judgment was reserved to be pronounced on 18.3.2006. On 18.3.2006, the impugned judgment was rendered by the trial court holding the petitioner guilty. Therefore, evidently, the petitioner had not even diligently taken the opportunity to cross examine P.W-1 and the evidence was closed and it was much later, that he had filed an application to recall P.W-1 to cross examine him, which was liberally allowed by the trial court and he was permitted to cross examine P.W-1. It was much later that the petitioner had filed an application to permit him to examine himself as DW-1 and it was dismissed on 14.3.2006 in view of the aforesaid reasons, etc. The trial court found that the intention of the petitioner was to prolong the matter unnecessarily and that moreover, the accused was absent on that day. The appellate court also found that the said contention of the petitioner regarding denial of reasonable opportunity to adduce defence evidence is not tenable in view of the abovesaid facts and circumstances and in view of the reasons stated by the trial court in its order passed on 14.3.2006 to deny the said request of the petitioner. It is in the light of all these aspects, that the trial court as well as appellate court have come to the concurrent findings that the complainant has proved his case and that except making bald submissions, the accused has not in any manner even remotely probabilise the defence suggestions and there was no denial of reasonable opportunity to adduce defence evidence in view of the belated request of the accused, etc. 9. This Court has also carefully evaluated all the evidentiary aspects as borne out from the lower court records and this Court is of the firm view that the said view concurrently taken by both the courts below cannot be branded as grossly perverse or unreasonable. Hence this Court is of the opinion that the petitioner has not been able to successfully establish any valid grounds for justifying the invocation of the revisional interference, in the facts and circumstances of this case. 10. Hence this Court is of the opinion that the petitioner has not been able to successfully establish any valid grounds for justifying the invocation of the revisional interference, in the facts and circumstances of this case. 10. As regards the sentence it is to be noted that the cheque in question was issued as early as on 4.9.2001 is for Rs. 60,000/-. Both the courts below have imposed fine of Rs. 75,000/- which was directed to be disbursed as compensation to the complainant. The said fine amount cannot be said to be disproportionate. The trial court had imposed substantive sentence of 3 months' simple imprisonment, which has been reduced to one month. 11. As regards the sentence, it is to be noted that the Apex Court in the case Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SCC 1907 held that in case of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. Further the Apex Court in the case Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566 has held that the offence of dishonour of cheques under Sec.138 of the N.I. Act is essentially a civil wrong which has been given criminal overtones and the gravity of the complaint cannot be equated with an offence under IPC and instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice. So the substantive sentence and default sentence require necessary modulation. 12. Sri.Vijai Mathews, learned counsel appearing for the revision petitioner accused submits that in case this Court is inclined to confirm the impugned conviction, then the petitioner may be given at least 6 months time to pay the fine amount of Rs. 75,000/-, as the revision petitioner is now aged 69 years and that he has no sufficient means to immediately raise the amount of Rs.75,000/-, etc. 13. In the light of the above aspects, the following orders and directions are issued: (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I. Act as per the impugned judgments of both the courts below will stand confirmed. (ii) The impugned modified sentence imposed on the petitioner as per the appellate judgment that the petitioner should suffer imprisonment for one month is modified and reduced to the imprisonment till rising of the court. (ii) The impugned modified sentence imposed on the petitioner as per the appellate judgment that the petitioner should suffer imprisonment for one month is modified and reduced to the imprisonment till rising of the court. (iii) Further directions of both the courts below that the petitioner should pay fine of Rs.75,000/- and further that the said amount so realized should be given as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C.. are confirmed. (iv) However, the petitioner is given 6 months' time from 1.3.2017 to pay the fine amount of Rs.75,000/- (v) The petitioner shall personally appear at 11 a.m. on 16.9.2017 before the trial court to undergo imprisonment till rising of the court and to pay fine of Rs. 75,000/-. (vi) On default of the petitioner to pay the said fine amount, the petitioner will have to undergo simple imprisonment for a further period of one month. (vii) On default of the petitioner either to appear before the trial court on 16.9.2016 or on default to pay the said amount, the trial court will be at liberty to proceed against the petitioner in accordance with law. With these observations and directions, the Revision Petition stands finally disposed of.