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2017 DIGILAW 538 (KER)

SHAJI BHASKER, S/O. BHASKAR v. ARUN SOMAN

2017-03-20

ALEXANDER THOMAS

body2017
ORDER : The petitioner is the accused in S.T.No.50/2014 on the file of the Judicial First Class Magistrate's Court-III, Kollam, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1st respondent. The trial court as per the impugned judgment dated 27.7.2015 had convicted the petitioner and had sentenced him to undergo simple imprisonment for 6 months and to pay compensation of Rs.1,90,000/-, out of which the complainant was entitled to receive Rs.1,88,000/- and in default of payment of the fine amount, the petitioner was sentenced to suffer simple imprisonment for four months. Aggrieved by the said conviction and sentence, the petitioner had preferred Crl.Appeal No.162/2015 before the appellate Sessions Court concerned (Court of II Addl. Sessions Judge, Kollam). The appellate court as per the impugned appellate judgment dated 9.12.2016 had upheld the conviction and modified the substantive sentence to imprisonment till rising of the court and reduced the fine amount to Rs.1,50,000/- (which is the cheque amount in this case), in default of payment of which, he was sentenced to suffer imprisonment for a further period of 4 months, etc. It is aggrieved by the said findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. Heard Sri. Biju. C. Abraham, learned counsel appearing for the revision petitioner accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. None has appeared for R-1, in spite of due service of notice. 3. The gist of the prosecution case is that towards discharge of a debt owed by the accused to the complainant, the revision petitioner accused had issued Ext.P-2 cheque dated 22.10.2012 for amount of Rs.1,50,000/-, which when presented was dishonoured due to insufficiency of funds. The complainant had then issued the statutory notice in terms of Sec.138 proviso (b) as per Ext.P-4 notice, which was duly received by the accused and the accused had not paid the amount covered by the cheque within time, in spite of such service of demand notice. The complainant had than preferred the instant complaint alleging offence punishable Sec.138 of the Negotiable Instruments Act against the revision petitioner, which resulted in the instant trial. The cheque amount involved in this case is Rs. 1.5 lakhs. 4. The complainant had than preferred the instant complaint alleging offence punishable Sec.138 of the Negotiable Instruments Act against the revision petitioner, which resulted in the instant trial. The cheque amount involved in this case is Rs. 1.5 lakhs. 4. During the trial the power of attorney holder of the complaint was examined as P.W-1 and the complainant himself was examined as P.W-2. The prosecution has marked Exts.P-1 to P-7 documents and the defence has marked Exts.D-1 and D-2 documents. The defence has not tendered any oral evidence. P.W-1 and P.W-2 have broadly deposed before the court below in tune with the contents of the complaint and deposed that the accused had borrowed an amount of Rs.1.5 lakhs from the complainant and in discharge of that debt, Ext.P-2 cheque dated 22.10.2012 was executed in favour of the complainant for an amount of Rs.1.5 lakhs, which when presented was dishonoured due to insufficiency of funds, as per Ext.P-3, consequent to which, Ext.P-4 demand statutory notice dated 5.12.2012 was duly issued and served on the accused. That the accused had not paid payment of the amount covered by the cheque in spite of due service of demand notice, which resulted in the complaint, etc. 5. The main attempt of the defence in challenging the abovesaid evidence of the prosecution is to the effect that the accused had neither borrowed any amount nor had executed Ext.P-2 cheque in his favour and further that there was a transaction between the accused and one Sri. Nizar, who is the friend of the complainant, in the year 2011 and that the accused had borrowed an amount of Rs.50,000/- from Sri. Nizar and that the accused was then constrained to give 3 blank signed cheques to the said Sri. Nizar in connection with that transaction and that the present dishonoured cheque as per Ext.P-2 is one of those cheques, which has been misused by the complainant in concert with Sri.Nizar. P.W-1 is the power of attorney holder of the complainant as well as the brother of the complainant. Further P.W-1, who is also the brother of the complainant, had deposed that he had direct knowledge about the transaction between the accused and the complainant. Both P.W-1 and P.W-2 stoutly denied the suggestion that Ext.P-2 cheque is one of the blank cheques allegedly issued by the accused in favour of Sri.Nizar, etc. Further P.W-1, who is also the brother of the complainant, had deposed that he had direct knowledge about the transaction between the accused and the complainant. Both P.W-1 and P.W-2 stoutly denied the suggestion that Ext.P-2 cheque is one of the blank cheques allegedly issued by the accused in favour of Sri.Nizar, etc. P.W-1 had admitted the suggestion made on behalf of the accused that crime was registered against the complainant based on a complaint filed by the accused herein and that Ext.D-1 the FIR in that said case was marked through P.W-1. It was clearly stated by P.W-1 that his brother is not engaged in the business of money lending. P.W-2 (complainant) has also deposed that though crime was registered against him, he had not gone to the Police Station in connection with the crime nor had taken bail in that crime, etc. Both P.W-1 and P.W-2 have deposed that the accused had brought the cheque, in which entries were made and he had signed the cheque in their presence. Though the accused made an attempt to challenge the financial capacity of the complainant to raise the amount of Rs.1.5 lakhs, both P.W-1 and P.W-2 have deposed before the trial court that the complainant was employed in Japanese Tobacco Company, Kochi, at the time of the financial transaction in question, between the complainant and the accused and that the complainant then had monthly salary of Rs. 25,000/-. Though P.W-2 had admitted that he had not produced any documents before the court to prove that his monthly salary was then Rs.25,000/-, he has clearly deposed that he could not produce such documents relating to his employment in Japanese Tobacco Company, Kochi, as the company was under lock out. P.W-2 has also stated that the company was under lock- out. The trial court noted that nothing serious was brought out in the cross-examination of P.W-1 and P.W-2 to discredit their testimony. The signature in Ext.P-2 was not denied by the accused and the cheque admittedly was issued from the account maintained by the accused. P.W-2 has also stated that the company was under lock- out. The trial court noted that nothing serious was brought out in the cross-examination of P.W-1 and P.W-2 to discredit their testimony. The signature in Ext.P-2 was not denied by the accused and the cheque admittedly was issued from the account maintained by the accused. Therefore, in view of all these factual aspects, both the courts below have come to the concurrent conclusion that the complainant is entitled for statutory presumption under Sec.139 and Sec.118 (a) of the Negotiable Instruments Act, but that the accused has miserably failed to rebut the said presumption and that the suggestions made by the accused have not been vindicated in any substantial manner so as to rebut the presumption. Both the courts below have come to the considered conclusion that the complainant could prove not only the transaction but also the execution and issuance of the dishonoured cheque in question as well as the other factual aspects relating to the dishonour and the issuance of the demand notice, etc. 6. On a considered evaluation of the evidence on record, this Court is of the view that the abovesaid findings of fact rendered concurrently by both the courts below regarding the issue of conviction of the petitioner, cannot be branded as highly perverse or unreasonable. The revision petitioner has not been able to establish any serious illegality or grave procedural impropriety in the rendering of the impugned judgments. No crucial and relevant evidence are seen shut out by both the courts below. Accordingly, this Court is of the firm view that the revision petitioner has failed to make out any substantial grounds for warranting revisional interference of this Court. As regards the question of sentence, it is to be noted that the trial court has sentenced the petitioner to undergo simple imprisonment for 6 months and to pay fine of Rs.1.9 lakhs and that the complainant is entitled to receipt Rs.1.88 lakhs from out of the said fine amount as per Sec.357(1)(b) of the Cr.P.C.. The appellate court has reduced the substantive sentence to imprisonment till rising of the court and has also reduced the amount to Rs. 1.5 lakhs as fine and in default thereof, the accused was sentenced to suffer simple imprisonment for 4 months. The appellate court has reduced the substantive sentence to imprisonment till rising of the court and has also reduced the amount to Rs. 1.5 lakhs as fine and in default thereof, the accused was sentenced to suffer simple imprisonment for 4 months. The fine amount so realised was directed to be paid to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C. Therefore, the impugned modified sentence imposed by the court below cannot be said to be in any manner excessive or disproportionate. So this Court is also of the view that the modified sentence imposed by the lower appellate court does not deserve any revisional interference. Faced with this situation, Sri.Biju C.Abraham, learned counsel for the revision petitioner accused submits that in case this Court is so inclined to uphold the impugned conviction and sentence in this case, then this Court may grant 10 months' time to pay the fine amount of Rs.1.5 lakhs, as the petitioner is facing extreme financial difficulties now. 7. On a consideration of the said plea, this Court is of the view that reasonable and sufficient time could be granted to the petitioner to pay the fine amount. But time by 10 months is quite long and, therefore, the petitioner is given time by 8 months to pay the said fine amount. Accordingly, following orders and directions are passed: (i) The impugned conviction imposed on the petitioner for the offence punishable under Sec.138 of the Negotiable Instruments Act will stand confirmed. (ii) The impugned conviction and the modified sentence imposed on the petitioner to pay fine amount of Rs.1.5 lakhs and default thereof, to undergo simple imprisonment for 4 months and that the fine amount, shall be disbursed to the complainant as compensation as per Sec. 357 (1)(b) Cr.P.C. will stand confirmed. (iii) The petitioner is given 8 months' time from 1.4.2017 to pay the fine amount of Rs. 1.5 lakhs. (iv) The petitioner will appear before the trial court at 11 a.m. on 4.12.2017 to suffer the imprisonment till rising of the court and to remit the fine amount of Rs. 1.5 lakhs. On default of payment of the said amount, the petitioner will have to suffer simple imprisonment for 4 months. 1.5 lakhs. (iv) The petitioner will appear before the trial court at 11 a.m. on 4.12.2017 to suffer the imprisonment till rising of the court and to remit the fine amount of Rs. 1.5 lakhs. On default of payment of the said amount, the petitioner will have to suffer simple imprisonment for 4 months. The said amount so realised, shall be disbursed as compensation to the complainant under Sec. 357(1)(b) of the Cr.P.C. (v) Until 4.12.2017 all further coercive steps taken against the petitioner in pursuance of the execution of the impugned sentence in this case will stand deferred. (vi) On default of the petitioner either to appear before the trial court on 4.12.2017 or in paying the abovesaid amount as directed above, the trial court will be at liberty to proceed against the petitioner, in accordance with law. With these observations and directions, the Criminal Revision Petition stands finally disposed of.