IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 432 of 2010()
1. B.SURENDRAN,AGED 53 YEARS,
... Petitioner
Vs
1. K.KARUNAKARAN,S/O.KESAVAN,
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.D.ROBINSON
For Respondent :SRI.NAGARAJ NARAYANAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :08/11/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.432 of 2010
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Dated this the 8th day of November, 2010.
O R D E R
The accused in a prosecution for an offence u/s.138 of
Negotiable Instruments Act is the revision petitioner, as he is
aggrieved by the order of conviction and sentence imposed by
the courts below.
2. The case of the complainant is that, towards the
discharge of the liability due to the complainant, the accused
issued a cheque dated 18.1.2005 for a sum of Rs.1,25,000/-,
which when presented for encashment dishonoured, as there
was no sufficient fund in the account maintained by the accused
and the cheque amount was not repaid inspite of a formal
demand notice and thus the revision petitioner has committed
the offence punishable u/s.138 of Negotiable Instruments Act.
With the said allegation, the complainant initially approached the
Judl. First Class Magistrate Court-I, Neyyattinkara, by filing a
formal complaint, upon which cognizance was taken u/s.138 of
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Negotiable Instruments Act and instituted S.T.No.170/05 and
subsequently the case was transferred to the Court of Judicial
First Class Magistrate-IV (Principal Munsiff)-Neyyattinkara,
wherein the case is renumbered as C.C.No.700/05. During the
trial of the case, PW1, the complainant himself was examined
from the side of the complainant and Exts.P1 to P9 were
marked. No evidence either oral or documentary adduced from
the side of the defence. On the basis of the available materials
and evidence on record, the trial court has found that the
cheque in question was issued by the revision petitioner/
accused for the purpose of discharging his debt due to the
complainant. Thus accordingly the court found that, the
complainant has established the case against the accused/
revision petitioner and consequently found that the accused is
guilty and thus convicted him u/s.138 of Negotiable Instruments
Act. On such conviction, the trial court sentenced the revision
petitioner to undergo simple imprisonment for 1 month and also
directed the revision petitioner to pay a sum of Rs.1,25,000/- to
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the complainant as compensation u/s.357(3) of Cr.P.C., within
30 days from the date of judgment, failing which the revision
petitioner was directed to undergo simple imprisonment for 15
days.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 6.11.2009 in
Crl.A.1136/06, the Court of Addl. Sessions Judge-I, Trivandrum,
allowed the appeal only in part and while confirming the
conviction, the sentence is modified and directed the revision
petitioner to undergo simple imprisonment till the rising of the
court and to pay compensation of Rs.1,25,000/- to the
complainant and the default sentence is fixed as one month
simple imprisonment. It is the above conviction and sentence
challenged in this revision petition.
4. I have heard Adv.Sri.D.Robinson, the learned counsel
appearing for the revision petitioner and Adv.Sri.Nagaraj
Narayanan, the learned counsel for the 1st respondent and I
have also carefully perused the judgments of the courts below.
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5. The main contention raised by the learned counsel for
the revision petitioner is that though the trial court has allowed
his petition u/s.311 of Cr.P.C., the witness was not examined
and thereby shut down the defence evidence, which resulted in
miscarriage of justice. According to the learned counsel for the
revision petitioner the cheque in question was given as a
security to the complainant, connected with a property
transaction, when the revision petitioner received a sum of
Rs.25,000/- being the earnest money for the sale of property
which belonged to the revision petitioner and his wife.
According to the learned counsel, in order to establish the above
transaction he had moved the trial court by filing a proper
petition and the same was though allowed by the trial court, the
witness was not examined inspite of the fact that he had
deposited a sum of Rs.400/- being the cost ordered by the court
below. According to the learned counsel, in the petition itself it
was prayed that a summons be issued to the witness cited by
the defence. But inspite of that prayer, the court below directed
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him to produce the witness. At present, the case of the
complainant is that the witness who sought to be summoned
and examined is a police officer working as Asst. Commissioner
and therefore it was not easy for him to produce by himself and
therefore he sought the assistance of the court by filing the
petition. However, according to the learned counsel though the
prayer was allowed and witness was not examined and thereby
the revision petitioner had sustain irreparable injury and
hardship, which resulted in miscarriage of justice. On the other
hand, the counsel for the revision petitioner submitted that the
petitioner is not entitled to get any relief, since he was
protracting the proceedings in the court below and he miserably
failed to produce the witness inspite of the fact that he was
directed to produce the witness.
6. I have carefully considered the contentions advanced by
the learned counsels of both sides and I have also perused the
materials made available to me.
7. The specific case of the complainant is that the accused
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borrowed a sum of Rs.1,25,000/- and towards the discharge of
the said liability, the accused issued a cheque in question, which
when presented for encashment dishonoured as there was not
sufficient fund in the account maintained by the accused. The
trial court as well as the appellate court accepted the
contentions of the complainant and found that the accused has
committed the offence punishable u/s.138 of Negotiable
Instruments Act. It is the above concurrent findings of the court
below sought to be challenged in this revision petition. It is in
support of the above challenge, the learned counsel for the
revision petitioner submitted that the court below denied the
opportunity of the revision petitioner to examine his witness and
in support of the above submission, the learned counsel brought
to my notice a decision reported in T.Nagappa Vs.
Y.R.Muralidhar [AIR 2008 Supreme Court 2010].
8. At this juncture it is pertinent to note that, the evidence
of the complainant was closed on 24.3.2006 and the case was
posted for recording 313 statement of the accused on 20.5.2006
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and subsequently the case was adjourned to 19.6.2006 for
defence evidence. On 20.7.2006 though the complainant as
well as the accused were present, no ‘witness schedule’ for the
defence was filed and hence the defence evidence was closed
on 20.7.2006 and the case was adjourned to 28.7.2006 and
then to 30.8.2006. It was on 30.8.2006, the revision petitioner
moved an application u/s.311 of Cr.P.C., which was allowed by a
separate order dated 30.8.2006. In the above order, the trial
court has specifically directed the revision petitioner/accused to
produce the witness and also observed that summons could
have been applied for. After issuing the above order the trial
court adjourned the case to 13.9.2006. On 13.9.2006, the court
has recorded that the accused present but no witness present
and accordingly the defence evidence was closed. Finally the
case was disposed of by judgment dated 31.10.2006. The
present case of the revision petitioner is that he could not
produce the witness and he was not expected to produce the
witness, because the prayer in the petition was to summon the
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witness by the court. But the above contention can not be
accepted at this stage. Though there was an order dated
30.8.2006, directing the revision petitioner to produce the
witness, no step was taken at the appropriate time.
9. Going by the case of the revision petitioner it appears to
me that by the non-examination of the witness sought to be
examined no much prejudice is caused to the revision petitioner,
especially in the light of the defence set up by the accused.
Regarding the property transaction, there is no agreement or
atleast a receipt or acknowledgment regarding the issuance of
the cheque or the acceptance of the earnest money. If actually
there was such an agreement and payment of the earnest
money, it was for the purchaser to insist for a written agreement
or atleast to demand for the acknowledgment of the receipt of
the amount. Normally, the seller is on the safer side in the
absence of any document, even if he receives money.
Therefore the explanation offered can not be swallowed without
a pinch of salt. Even according to the revision petitioner, the
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alleged agreement was on 23.6.2004. Ext.P6 notice was issued
by the complainant on 31.1.2005. Allegedly Ext.P7 notice from
the side of the revision petitioner was issued on 27.1.2005.
Regarding the sale or execution of the documents etc., there is
no evidence and in the absence of any evidence regarding those
aspects there is no explanation as to how and why Ext.P7 notice
was issued on 27.1.2005. In para 8 of the of the decision of the
Apex Court in the decision cited supra, the apex Court has also
observed that, ” But ordinarily an accused should be allowed to
approach the Court for obtaining its assistance with regard to the
summoning of witnesses etc. If permitted to do so, steps therefor,
however, must be taken within a limited time. There can not be any
doubt whatsoever that the accused should not be allowed to
unnecessarily protracting the trial or summon witnesses whose
evidence would not be at all relevant.” In the nature of the
contentions raised in this revision petition and especially in the
light of the above decision, I am of the view that non-
examination of the witnesses cited by the accused is not at all
fatal or any prejudice is caused to the revision petitioner,
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especially when the revision petitioner miserably failed to take
appropriate steps at appropriate time to get examined the
witnesses inspite of the fact that the court has allowed his
prayer. Therefore it can be safely concluded that the intention of
the accused was to protract the matter. In the light of the above
facts and circumstances involved in the case and in view of the
above discussion, I find no reason to interfere with the
concurrent findings of the court below.
10. Regarding the sentence, it appears to me that though
the trial court has imposed a sentence of one month simple
imprisonment, the appellate court has reduced the same to one
day simple imprisonment ie., till the rising of the court, so no
interference is called for, with respect to the sentence also.
Both the courts below directed the revision petitioner to pay a
compensation of Rs.1,25,000/- to the complainant u/s.357(3) of
Cr.P.C.
In the result, this revision petition is disposed of confirming
the conviction against the revision petitioner u/s.138 of
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Negotiable Instruments Act as recorded by the courts below.
Accordingly, the revision petitioner is directed to pay the amount
within 2 months from today and it is made clear that the default
sentence ordered by the court below will be attracted only if
there is any default on the part of the revision petitioner in
paying the compensation within the time limit fixed by this court.
It is also made clear that the revision petitioner is free to pay the
compensation amount either directly to the complainant or by
remitting the same in the trial court, which ever subject to the
satisfaction of the learned Magistrate. Accordingly, the revision
petitioner is directed to appear before the trial court on or before
10.1.2011, to pay the compensation amount as ordered by
courts below and approved by this court. In case, any failure on
the part of the revision petitioner in paying the compensation
amount, the trial court is free to take coercive steps to secure
the presence of the revision petitioner and to execute the
sentence awarded against the revision petitioner. The execution
of warrant if any, pending against the revision petitioner shall be
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deferred till 10.1.2011.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/