High Court Kerala High Court

B.Surendran vs K.Karunakaran on 8 November, 2010

Kerala High Court
B.Surendran vs K.Karunakaran on 8 November, 2010
       

  

  

 
 
  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.
                     -------------------------------
                    Crl. R.P.No.432 of 2010
                     -------------------------------
           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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Crl. R.P.No.432 of 2010

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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Crl. R.P.No.432 of 2010

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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Crl. R.P.No.432 of 2010

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/