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2017 DIGILAW 904 (KER)

Unnikrishnan v. K. L. M. Chits Syndicate

2017-06-19

ALEXANDER THOMAS

body2017
ORDER : The petitioner is the accused in C.C.No.1243/2015 on the file of the Judicial First Class Magistrate’s Court-I, Muvattupuzha, for offence punishable under S.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1st respondent (complainant). The trial court as per the impugned judgment dated 18.4.2016 had convicted the petitioner and had sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs.65,000/- and in default thereof, the petitioner was sentenced to undergo simple imprisonment for two months. An amount of Rs.64,000/-, out of the fine amounts so realised, was directed to be paid to the complainant as compensation. Aggrieved thereby, the petitioner had preferred Crl. Appeal No.156/2016 before the appellate Sessions Court concerned (Court of Sessions Judge, Muvattupuzha). The appellate court as per the impugned appellate judgment dated 16.5.2017 had upheld the conviction and had also confirmed the sentence, thereby dismissed the appeal. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under S.397 read with S.401 of the Cr.P.C. 2. Heard Sri. R. Krishnakumar, learned counsel appearing for the revision petition (accused) and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. In the nature of the orders proposed to be passed in this revision, notice to R-1 will stand dispensed with. 3. The brief of the allegation in the complaint is that for clearing a liability of Rs,60,000/-, the petitioner accused had issued the instant Ext.P-1 cheque dated 28.2.2013 for Rs.60,000/- and that the cheque when presented was dishonoured by the bank concerned as intimated by Exts.P2 and P-3 memos on the ground of insufficiency of funds and then returned to the complainant on 1.3.2013 as per Ext.P2 and P-3 memos. The complainant had issued Ext.P-4 statutory demand notice dated 20.3.2013 calling upon the complainant to pay off the amount covered by the cheque within 15 days’ time, etc. The said notice was duly served on the accused on 22.3.2016 as evidenced by Exts.P-5 and P-6. That since accused had not cleared the liability, the instant complaint was initiated after complying with the statutory requirement in that regard. 4. The said notice was duly served on the accused on 22.3.2016 as evidenced by Exts.P-5 and P-6. That since accused had not cleared the liability, the instant complaint was initiated after complying with the statutory requirement in that regard. 4. During the trial, the power of attorney holder of the complainant company was examined as P.W-1 and the manager of the complainant company, who was directly in charge of the transaction was examined as P.W-2. The prosecution has marked Exts.P-1 to P-11 documents. The defence has marked Ext.D-1 document. The defence has not adduced any oral evidence. 5. Both the courts below found that P.W-1 (power of attorney holder) did not have any direct knowledge in the transaction in question as he was not in charge in the affairs of the business at the relevant time. The business manager of the company, who was in charge of the transaction, was examined as P.W.-2. It has come out in evidence that one Ranjithkumar, son of the accused, subscribed a chit sala amount of which was Rs.5 lakhs and that chit was auctioned by him on 25.10.2009 for Rs.3.75 lakhs and that the accused as the father of the said subscriber, had executed an agreement as guarantor in that transaction as per Ext.P-10. That the subscriber (son of the accused) had defaulted for 2 instalments of Rs.25,000/- each on 25.1.2011 and 25.2.2011. Since the subscriber had not cleared the defaulted amounts, the accused, being the father of the subscriber, who was also the surety, had volunteered to come forward to pay off the liability owed by his son by issuing cheque dated 28.2.2016 for Rs.60,000/-, which was the total liability owed by the subscriber to the complainant firm. The defence put forward by the accused was that the subscriber had not owed the liability and had cleared the liability. Ext.D-1 is the passbook. It has been deposed by P.W.-2 that even Ext.D-1 would show that there has been no payment after the issuance of Ext.P-1 cheque. Ext.P-11 is the extract of the account of the accused, which would show the default of 2 instalments. On this basis, both the courts below have found that it can be safely concluded that the accused who is the surety/guarantor of his son, who is the subscriber of the chit transaction, had issued the cheque in respect of the defaulted instalments, etc. On this basis, both the courts below have found that it can be safely concluded that the accused who is the surety/guarantor of his son, who is the subscriber of the chit transaction, had issued the cheque in respect of the defaulted instalments, etc. One of the main contentions raised by the accused was that P.W-1 is incompetent as he has admitted that he had no direct knowledge about the transaction. Further that there is no averment in the complaint instituted through the power of attorney (P.W-1) that he has any direct knowledge, etc. But both the courts below found that the complainant firm had only sought to prosecute the complaint through P.W-1 and that business manager, who was in charge of the transactions had deposed as P.W-2. It is contended by the accused that P.W-2 has not produced any document to show that he is the business manager of the company. But both the courts below have found that in cross examination nothing could be brought out to discredit the evidence of P.W-2. In the light of these aspects, the courts below found that the defence version is not credible, whereas the complainant’s version is believable and probable. Therefore, on the basis of these factual findings, both the courts below have found that the petitioner is liable to be convicted for the abovesaid findings. These factual findings regarding the conviction cannot be said to be perverse or unreasonable. So this Court is not persuaded to hold that the conviction is liable for revisional interference. As regards the sentence, it is seen that the trial court has sentenced the petitioner to undergo simple imprisonment till the rising of the court and to pay fine of Rs.65,000/- and in default of payment of fine, he was sentenced to undergo simple imprisonment for 2 months and out of the fine amount of Rs.65,000/-, Rs.64,000/- was directed to be disbursed to the complainant as compensation under S. 357(1)(b) of the Cr.P.C. 6. Faced with this situation, the petitioner’s counsel submits that in case this Court is so inclined to uphold the conviction and sentence, then the fine/compensation and may be limited to Rs.60,000/- (which is the cheque amount) and further that at least 6 months’ time may be given to the petitioner to pay the compensation amount. It is also submitted that the petitioner is in acute financial difficulties. It is also submitted that the petitioner is in acute financial difficulties. Having regard to this submission, this Court is the view that fine/ compensation amount could be limited to the cheque amount of Rs.60,000/- and he could be given four month’s time to pay off the abovesaid amount. Accordingly the following orders and directions are issued: (i) The impugned conviction imposed on the petitioner for the offence under S.138 of the Negotiable Instruments Act will stand confirmed. (ii) The impugned substantive sentence of imprisonment till rising of the court is also confirmed. (iii) The order sentencing the petitioner to pay fine of Rs.65,000/- and out which Rs.64,000/- is to be disbursed as compensation, etc. will stand modified with the order that the petitioner is directed to pay compensation of Rs.60,000/- (the amount covered by the cheque) in terms of S.357(3) of the Cr.P.C. (iv) The petitioner is given 4 months time from 1.7.2017 to pay the said compensation amount directly to the complainant. On payment of the amount, the complainant will issue receipts to the accused so that the accused can produce the same before the trial court to satisfy the said court about payment of those amounts. (v) The petitioner shall appear before the trial court at 11 a.m. on 4.11.2017 to receive the sentence of imprisonment till rising of the court and to satisfy the trial court about the payment of the compensation amount of Rs.60,000/- directly to the complainant. (vi) Since the cheque amount is Rs.60,000/-, the default clause sentence is reduced from 2 months to one month. (vii) Until 4.11.2017 all further coercive steps taken against the petitioner in pursuance of the execution of the impugned warrant will stand deferred. (viii) On default of the petitioner either to appear before the trial court on 4.11.2017 or on default in paying the abovesaid amount, the trial court will be at liberty to proceed against the petitioner, in accordance with law. 7. Before parting with this case, this Court would like to place on record the fact that the appendix of the trial court judgment, especially in respect of the prosecution exhibits, does not show any of the dates of those documents. While dealing with many such cases, this Court has seen that the trial courts are omitting to mention the dates of the exhibits marked during the trial, in the appendix of the judgments. While dealing with many such cases, this Court has seen that the trial courts are omitting to mention the dates of the exhibits marked during the trial, in the appendix of the judgments. This causes unnecessary inconvenience and difficulties for the appellate sessions court as well as the superior courts. Chapter XVII of the Criminal Rules of Practice framed under the enabling provisions of Art.227 of the Constitution of India and S.477 of the Cr.P.C. deal with “Judgments and Calendars”. Rule 134 therein reads as follows: “Section 134: The list of witnesses to be appended to the Judgment; There shall be appended to every judgment a list of witnesses examined by the prosecution and for the defence and by the court and also a list of exhibits and material objects.” 8. The corresponding provision contained in the Civil Rules of Practice framed by virtue of the enabling powers is Chapter V thereof dealing with “Judgments, decrees and Orders” and Part A thereof deals with “Form and contents”. Rule 181 included in Rule V of the Civil Rules of Practice reads as follows: “Rule 181: Form of judgment (1) The judgment of the Court shall be headed and drawn up as in Form No. 29 and a list of the exhibits filed and witnesses examined shall be annexed thereto. (2) In preparing the list of exhibits, the number of the exhibit, the date of document and the description of the document should be shown in that order. Where the document does not give the English date, the corresponding English date should be shown. Where the document does not bear any date it must be shown as dated nil.” 9. True that Rule 134 of the Criminal Rules of Practice does not explicitly stipulate that the dates, if any, of all the exhibited documents, should necessarily be shown in the appendix of the judgments of the concerned trial courts. However, clear and precise details in that regard regarding the dates, if any, are stipulated in Rule 181 of the Civil Rules of Practice. Merely because there is no explicit mention in Rule 134 of the Criminal Rules of Practice about showing of the dates, if any, of the exhibited documents, does not imply that the trial court does not have a duty to show those dates. Merely because there is no explicit mention in Rule 134 of the Criminal Rules of Practice about showing of the dates, if any, of the exhibited documents, does not imply that the trial court does not have a duty to show those dates. In these circumstances, the omission to show the dates in the appendix of the judgments rendered by the criminal trial courts, causes unnecessary difficulties and inconveniences to the appellate sessions courts and the superior courts. Accordingly, the Registrar General will examine these issues and may issue necessary instructions to the criminal trial courts, especially to the magistrates’ courts about the necessity to show the dates if any, of the exhibited documents in the appendix of the judgment. With these observations and directions, the Criminal Revision Petition stands finally disposed of.