IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 378 of 2002()
1. M.S.SUBRAMANIAN, AGED 49 YEARS,
... Petitioner
Vs
1. K.K.SHEKARAN, S/O.KUNJUMON,
... Respondent
2. KERALA STATE, REPRESENTED BY
For Petitioner :SRI.M.V.BOSE
For Respondent :SRI.T.M.CHANDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/04/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.R.P.No.378 of 2002
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Dated: 1st April, 2009
ORDER
Challenge in the revision is against the concurrent verdict of
guilty rendered against the revision petitioner/accused for the offence
under Section 138 of the Negotiable Instruments Act (for short ‘the
N.I.Act’). The first respondent, hereinafter referred to as the
complainant, filed a complaint to prosecute the accused for the
offence under Section 138 of the N.I.Act. Negativing the plea of not
guilty raised by the accused, the learned Magistrate, after trial, found
him guilty and convicted and, sentenced him to undergo simple
imprisonment for three months and to pay a fine of Rs.51,000/- with
default term of simple imprisonment for three months more. Out of
the fine amount, if realised, Rs.50,000/- was directed to be paid as
compensation to the complainant. The learned Sessions Judge in
revision confirmed the conviction, but modified the sentence retaining
the substantive term of simple imprisonment for three months
directing the accused to pay compensation of Rs.50,000/- to the
complainant under Section 357(3) of the Cr.P.C. Aggrieved by the
conviction and sentence, the accused has preferred this revision
questioning its legality, propriety and correctness.
Crl.R.P.No.378/02 – 2 –
2. The case of the complainant in brief is that the accused
towards discharge of a loan issued Ext.P1 cheque for a sum of
Rs.50,000/- promising its encashment on presentation in due course.
The cheque when presented was dishonoured due to insufficiency of
funds in the account of the accused. Statutory notice issued
intimating dishonour and demanding the sum covered by the cheque
was acknowledged, but not responded with reply or payment. The
complainant thereupon launched prosecution against the accused
under Section 138 of the N.I.Act.
3. The accused, on appearance, pleaded not guilty when the
particulars of the offence were made known. Complainant examined
two witnesses, P.Ws.1 and 2 and got marked Exts.P1 to P7 to prove
the case. The accused questioned under Section 313 of the Cr.P.C.
maintained his innocence. He examined one witness as D.W.1.
4. I heard the learned counsel for the revision
petitioner/accused and also the learned counsel for the complainant.
Learned counsel for the accused assailing the conviction contended
that the complainant had not let in any evidence to prove that Ext.P1
cheque had been issued in discharge of a debt or liability due from
the accused. The evidence of D.W.1 who witnessed the transaction
over the cheque, as admitted by the complainant, it is submitted,
Crl.R.P.No.378/02 – 3 –
runs contrary to the evidence of the complainant that the cheque was
received in the month of September, 1996. D.W.1 in his evidence has
stated that the transaction took place in January, 1996 and two
months later the cheque was issued to the complainant at the house
of the accused. Since the version of the complainant over the
transaction is found not established and further disproved by the
evidence of D.W.1, it is the submission of the counsel that better
evidence on the transaction leading to the issue of Ext.P1 cheque was
required to sustain the prosecution under Section 138 of the N.I.Act.
On the other hand, learned counsel for the complainant submitted
that there is no merit in the challenges raised against the conviction
of the accused, which, according to the counsel, is fully supported by
the legal evidence. It is further submitted that D.W.1, the witness
examined by the accused also supported the version of the
complainant that the cheque had been handed over by the accused
towards discharge of a liability arising out of a loan transaction.
5. I have perused the records of the case giving consideration
to the submissions made by the counsel on both sides. First of all, it
has to be pointed out revisional jurisdiction is supervisory in character
and intended to avoid failure of justice. Concurrent finding entered by
the two inferior courts is not liable to be interfered with in revision
Crl.R.P.No.378/02 – 4 –
unless it is shown such finding is so perverse and not supported by
the materials tendered in the case. Even if a different view on the
materials produced is permissible, the revisional court cannot
supplement its view as different from the view taken by the inferior
courts. The learned Magistrate who had the opportunity to watch the
demeanour and deportment of the complainant examined as P.W.2,
found his testimony reliable, trustworthy and credible. Perusing the
evidence of P.W.2, I find no reason to take a different view. Further
more, it is seen, during his cross examination, the accused had no
definite defence to impeach his assertion that the cheque had been
issued in discharge of liability arising out of a loan advanced to him.
This has to be viewed in the backdrop that despite receiving statutory
notice intimating dishonour of the cheque, no reply was given. Other
than contending that the accused had not received any loan from the
complainant, the defence projected was that he had handed over
Ext.P1 cheque as security to a chitty company. He had no information
how the complainant had collected the cheque from the chitty
company or any explanation how the cheque landed in the hands of
the complainant. While giving evidence P.W.2 stated that the
transaction was witnessed by one Sankaranarayanan. Though the
accused had not advanced any specific defence other than putting
Crl.R.P.No.378/02 – 5 –
forth some suggestive questions to the complainant, during his
cross examination, not even when he was questioned under Section
313 when his attention was invited to the incriminating circumstances
appearing in the prosecution evidence, he proceeded to examine the
person named by the complainant, who was stated as present when
the transaction between them took place. The witness examined by
the accused as D.W.1, it is seen, supported the case of the
complainant. Of course, there is some discrepancy in his evidence as
regards the date when the cheque was handed over, which in the
given facts of the case, has got only innocuous value. On the
materials produced in the case, the conviction founded against the
accused for the offence under Section 138 of the N.I.Act is not liable
to be interfered with as it is found fully supported by legal evidence.
Conviction of the accused is only to be upheld and I do so. Now,
considering the sentence imposed against the accused, it is true that
normally incarceration of an offender found guilty of the offence
under Section 138 of the N.I.Act for a term in prison is not warranted
to meet the ends of justice. Accused is stated to be an Executive
Officer in Panchayat Department. Having regard to the post held by
him as a public servant which command respect in the society, it
cannot be stated that the courts below have erred in awarding a
Crl.R.P.No.378/02 – 6 –
deterrent punishment directing him to undergo substantive term of
imprisonment for three months. Learned counsel for the accused,
however, made a fervent plea for avoiding the prison term on the
ground that he had already retired from service. Having regard to the
facts involved and the submissions made, sentence imposed against
the accused is modified directing him to undergo imprisonment till the
rising of the court and to pay compensation of Rs.55,000/- to the
complainant under Section 357(3) of the Cr.P.C. within two months
from the date of this order. In default of payment of compensation
within the stipulated time as directed, the accused shall undergo
simple imprisonment for two months. The accused shall appear and
his sureties shall produce him before the Judicial First Class
Magistrate, Kunnamkulam on 1st June, 2009 and the learned
Magistrate shall execute the sentence as directed. Revision is
disposed of as above.
srd S.S. SATHEESACHANDRAN, JUDGE