IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3212 of 2006()
1. K.K.MARY, W/O.K.P.RAMAN,
... Petitioner
Vs
1. K.MOHANAN, S/O.KUNHUKUNHU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.N.J.ANTONY
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/06/2008
O R D E R
V.RAMKUMAR, J.
.................................................
Crl.R.P. No. 3212 of 2006
&
Crl.R.P. No. 1909 of 2008
................................................
Dated: 16-06-2008
O R D E R
In these Revision Petitions filed under Section 397 read with
Sec. 401 Cr.P.C. the common petitioner who was the accused in C.C.
No. 493 of 2001 on the file of the J.F.C.M.I , Sulthan Bathery, for an
offence punishable under Sec. 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as ‘the Act’) and who was the
complainant in C.C. No. 52 of 2005 on the file of the J.F.C.M.II,
Sulthan Bathery respectively, for offences punishable under Sections
468 and 471 I.P.C., challenges the conviction entered and the
sentence passed against him in C.C. No. 493 of 2001 and the
dismissal of C.C. 52 of 2005 filed by him.
2. I heard the learned counsel for the Revision Petitioner and
the learned Public Prosecutor.
3. The learned counsel appearing for the Revision Petitioner
re-iterated the contentions in support of the Revisions. The courts
below have concurrently held that the cheque in question was drawn
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by the petitioner in favour of the complainant on the drawee bank,
that the cheque was validly presented to the bank, that it was
dishonoured for reasons which fall under Section 138 of the Act, that
the complainant made a demand for payment by a notice in time in
accordance with clause (b) of the proviso to Section 138 of the Act
and that the Revision Petitioner/accused failed to make the payment
within 15 days of receipt of the statutory notice.
4. The learned counsel appearing for the revision petitioner
made the following further submissions before me:-
This is a case in which the accused in C.C. No. 493 of 2001 had
lodged a complaint before the Sulthan Bathery police alleging forgery
of the cheque by the complainant and alleging commission of offences
punishable under Sections 468 and 471 I.P.C. Eventhough the police
registered the case as Crime No. 297 of 2002 and charge-sheeted
the complainant, the said case being a counter case to the present
prosecution was not disposed of by the Magistrate along with the
present case numbered as C.C. No. 493 of 2001. After the
authoritative pronouncement by the Apex Court in the decisions
reported in AIR 2001 S.C. 826 – Sudhir and Others v. State of
Madhya Pradesh and Nathi Lal v. State of U.P. – 1990 SCC
145, the case and counter case which are also called cross cases
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should be disposed of by the same court one after another and
judgment pronounced in quick succession so that the whole case is
before the very same court which has an opportunity to get a complete
perspective of the rival contentions. The J.F.C.M. I, Sulthan Bathery
who tried the present case as C.C. No. 493 of 2001 ought to have
taken steps to see that C.C. No. 401 of 2002 subsequently re-
registered as C.C. No. 52 of 2005 on the file of the J.F.C.M. II,
Sulthan Bathery was also tried along with this case so that there was
no failure of justice. The case of the revision petitioner was that on
18-9-1993 and on 30-09-1993, she had borrowed Rs. 15,000/- each
totalling to Rs. 30,000/- from the complainant and had given a
signed blank cheque by way of security and the said cheque was
forged into the present one showing a sum of Rs. 95,000/- by the
complainant . Her further case is that she had discharged the above
loan of Rs. 30,000/- between 1993 and 1997. Exts. D1 to D5 letters
issued by the complainant to the husband of the revision
petitioner/accused will go to show that the transaction was really
between her husband and the complainant and the amount borrowed
was only Rs. 30,000/- and he was going on increasing the interest
payable on the said amount of Rs. 30,000/-. It was on account of the
close relationship between the parties that the revision petitioner did
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not take the trouble of getting back the cheque after discharging the
loan of Rs. 30,000/- borrowed by her. When the matter was pending
in appeal before the lower appellate Court, she had filed a petition for
sending the cheque to the handwriting expert opinion as to whether
the writings other than the signature in the cheque were not forged or
not. The said petition was rejected by the lower appellate court for no
valid reason.
5. I am afraid that I cannot agree with the above
submissions. Going by the case of the complainant, amounts were
borrowed on 11-7-1999 and 22-8-99 and it was in discharge of the
said liability that the accused issued Ext.P1 cheque for Rs. 95,000/-.
As against this, the version of the accused was that it was her
husband Raman examined as D.W.4 who was the borrower and the
amount borrowed by him was only Rs. 30,000/- and it was at the time
of the said borrowal that a signed blank cheuqe of the accused was
handed over to the complainant by way of security. If the said
transaction was closed by either the revision petitioner or her husband
discharging the entire amount by 1997, an explanation was due from
the revision petitioner as to why she allowed the cheque to be
retained by the complainant for four years after which C.C. 493 of
2001 was filed by the complainant. Of course, the complainant is none
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other than the husband of the sister of the revision petitioner. But
then if the relationship was one of complete trust and confidence on
account of the close relationship between the revision petitioner and
the complainant , one would not have expected the complainant to
insist on a cheque from the revision petitioner. Hence, the explanation
that it was on account of the close relationship that she did not care to
take back the cheque from the complainant after discharging the
liability cannot be believed for a moment.
6. The complaint in this case was filed on 28-12-2001. The
revision petitioner lodged a complaint before the Sulthan Bathery
police only in the year 2002 alleging that Ext.P1 cheque was forged by
the complainant and that the complainant thereby committed
offences punishable under Sections 468 and 471 I.P.C. Eventhough
the said case was registered as C.C. 401 of 2002, no attempt was
made before the J.F.C.M. I, Sulthan Batheri to appraise the Magistrate
about the pendency of C.C. 401 of 2002 before the J.F.C.M. II,
Suolthan Bathery. On the contrary, the present case namely C.C. 493
of 2001 was allowed to be tried without any demur. The argument
that the Magistrate should have taken steps to get C.C. No.401 of
2002 transferred from the file of the J.F.C.M.II to his Court for the
purpose of consolidation and joint trial cannot be accepted. There is
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no such duty cast on the Magistrate to call for the files from another
court to enable the Magistrate to try the case along with a case already
pending before him on the ground that one of the parties contends
that both the cases are cross cases to be jointly tried and disposed
of. Nothing prevented the revision petitioner from moving the
superior courts for transfer of C.C. 401 of 2002 from the file of
J.F.C.M. II to the file of J.F.C.M. I. If as a matter of fact, C.C. 401 of
2002 was liable to be tried along with C.C. 493 of 2001 and even
after appraising the Magistrate about the pendency of the other case
the Magistrate proceeded to try C.C. 493 of 2001 the petitioner
should have either moved the Sessions Court or this Court for
successive trial of the two cases and until then he should have
applied for a stay of the trial of C.C. 493 of 2001. No such attempt
was made. On the contrary, C.C. 493 of 2001 was tried without any
objection from the revision petitioner. After he was convicted and
sentenced by the trial court he had preferred an appeal before the
Sessions Court as Crl. Appeal 5 of 2004 before the Sessions Judge,
Wayanad . In that appeal also it was not contended that the trial court
went wrong in not disposing of the alleged counter case namely C.C.
401 of 2002 along with C.C. 493 of 2001. It is for the first time
before this Court that the petitioner has raised such a contention
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which is only to be rejected and I do so.
7. The other contention that the petition filed by the revision
petitioner before the lower appellate court for sending the cheque in
question for expert opinion also does not deserve serious
consideration. Ext.P1 is admittedly a cheque given by the revision
petitioner to the complainant and it contains his signature also. Of
course, according to her it was only a signed blank cheque offered as
a security. If it was offered as a security to be made use of by the
complainant upon the revision petitioner committing default in
repaying the loan, then it is to be presumed that it contains an
implied authority to the complainant to use the cheque as a negotiable
instrument in the event of default by the accused. Except contending
that she had discharged the liability with regard to an earlier loan
taken from the complainant, no scrap of paper was produced in
support of the plea of discharge. The revision petitioner would have
been the best person to substantiate her contention that the loan
which was availed of from the complainant was only Rs. 30,000/- and
she had discharged the same. But, for reasons best known to her, she
did not mount the witness box. Instead her husband alone was
examined as D.W.4. Even on her own admission Ext.P1 cheque was
given as a signed blank cheque undertaking the liability of her
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husband who according to her was the person who borrowed the
amount. If so, the prosecution of the revision petitioner under SEc.
138 of the N.I. Act was fully justified.
8. With regard to the alleged counter case initiated at the
instance of the revision petitioner, it was numbered as C.C. 401 of
2002 and re-registered as C.C. 52 of 2005 on the file of the J.F.C.M.
II, Sulthan Bathery. That court after trial, has acquitted the accused
therein who is the complainant in C.C. 493 of 2001 under Sec. 248 (1)
Cr.P.C. as per judgment dated 27-9-2007. The said acquittal is also
after a careful evaluation of the oral and documentary evidence in the
case. It is too late in the day for the revision petitioner to canvass the
correctness of the said acquittal on the ground that C.C. No. 52 of
2005 ought to have been tried along with C.C. 493 of 2001 which
was tried without any objection before the J.F.C.M. I, Sulthan
Bathery.
9. C.C. 52 of 2005 was thus rightly dismissed by the
Magistrate and no interference is called for. Crl.R.P. No. 1909 of 2008
is accordingly dismissed.
10. Both the courts have considered and rejected the defence
set up by the revision petitioner while entering the finding of guilt in
C.C. 493 of 2001. The said finding has been recorded on an
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appreciation of the oral and documentary evidence. I do not find any
error, illegality or impropriety in the finding so recorded concurrently
by the courts below. The conviction was thus rightly entered against
the petitioner.
11. What now survives for consideration is the question as to
whether what should be the proper sentence to be imposed on the
revision petitioner. Having regard to the facts and circumstances of
the case, I am inclined to modify the sentence imposed on the revision
petitioner. In the light of the recent decision of the Supreme Court in
Ettappadan Ahammedkutty v. E.P. Abdullakoya – 2008 (1) KLT
851 default sentence cannot be imposed for the enforcement of an
order for compensation under Sec. 357 (3) Cr.P.C. Accordingly, for
the conviction under Section 138 of the Act the revision petitioner is
sentenced to pay a fine of Rs. 95,000/- (Rupees ninety five
thousand only) The said fine shall be paid as compensation under
Section 357 (1) Cr.P.C. The revision petitioner is permitted either to
deposit the said fine amount before the Court below or directly pay
the compensation to the complainant within four months from today
and produce a memo to that effect before the trial Court in case of
direct payment. If he fails to deposit or pay the said amount within
the aforementioned period he shall suffer simple imprisonment for
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three months by way of default sentence.
In the result, Crl.R.P. 3212 of 2006 is disposed of confirming the
conviction entered but modifying the sentence imposed on the
revision petitioner and Crl.R.P. No. 1909 of 2008 is dismissed.
Sd/-V. RAMKUMAR, JUDGE.
/true copy/
ani/-