IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3296 of 2006()
1. K.P. RATHIKUMAR, AGED 43 YEARS,
... Petitioner
Vs
1. N.K. SANTHAMMA, KARUNAGIRI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.R.VINOD
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :26/09/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3296 of 2006
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Dated this the 26th day of September, 2006
O R D E R
Does the admission that the cheque was issued as security for
“………………………” repayment of the loan take the transaction out of
the sweep of Section 138 of the N.I. Act? Tis is the relevant question
that falls for consideration in this revision petition directed against
a concurrent verdict of guilty, conviction and sentence in a
prosecution under Section 138 of the N.I. Act.
2. The cheque is for an amount of Rs. 20,000/-. It bears the
date 1.1.2001. The petitioner now faces a sentence of S.I. for a
period of two months. There is also a direction to pay an amount
of Rs. 20,000/- as compensation and in default to undergo S.I. for a
period of one month.
3. The signature in the cheque is admitted. The notice of
demand was duly received and acknowledged. But no reply is
produced and proved. It is undisputed that a reply was sent and
Crl.R.P.No. 3296 of 2006 2
received by the counsel for the complainant. The complainant examined
herself as PW1 and proved Exts.P1 to P7. In the reply notice and in the
course of the trial, the accused took up the stand that the cheque was
issued as a signed blank cheque as security not to the complainant, but to
her deceased husband as security for the due discharge of the liability in a
transaction for a much lesser amount of Rs.10,000/- The said amount had
been paid and discharged also without voucher. The complainant’s husband
had thereafter committed suicide. The complainant was misutilising the
said cheque to stake such a false claim. The accused examined a witness as
DW1. The purpose of examination of this witness is to show that
discharge without voucher of the liability to the deceased husband of the
complainant was made. .
4. The courts below, in these circumstances, concurrently came to
the conclusion that the complainant has succeeded in establishing all
ingredients of the offence punishable under Section 138 of the N.I. Act.
Accordingly they proceeded to pass the impugned concurrent judgments.
5. Called upon to explain the nature of challenge which the
petitioner wants to mount against the impugned concurrent judgments, the
Crl.R.P.No. 3296 of 2006 3
learned counsel for the petitioner reiterates the contentions that have been
raised before the courts below. In addition he raises a further contention
that even admittedly, going by the notice of demand, Ext.P3, the cheque
was issued only as security and not for the discharge of a legally enforcible
liability. I have been taken through the relevant evidence in the case.
6. The first contention raised before this court that the cheque was
issued admittedly only as security cannot obviously stand. I have been
taken through the notice of demand, Ext.P3. In that it is very clearly stated
that the amount was borrowed and as security for repayment the cheque
was issued. It is true that the word security ” ……………………” is repeated
twice in Ext.P3 notice. But according to me it would be myopic to come
to the conclusion from that expression employed in the notice that the
cheque was not issued for the discharge of any legally enforcible
debt/liability. When repayment is assured by issue of a cheque, in common
parlance the laity may refer to such handing over of the cheque for
discharge of the liability as a conduct to assure and secure payment and
discharge of the liability. It would be impermissible from that expression
used, which, according to me, only conveys that the lending/borrowal was
Crl.R.P.No. 3296 of 2006 4
on the strength of the cheque issued for the discharge of the liability, to
conclude that the cheque was not issued for the discharge of any liability.
The inexact expression used in the notice of demand even assuming that it
does not mean “on the strength of” and means “on the security of” cannot in
any way deliver any advantage to the petitioner. The cheque will continue
to be one issued for the discharge of liability as contemplated under Section
138 of the N.I. Act. The crucial question is only whether the cheque was
drawn – written, signed and delivered, to the complainant by the petitioner.
7. The contention that there was no transaction between the
petitioner and the complainant and that the real transaction was with the
complainant’s husband and the petitioner remains in the realm of an
unsubstantiated contention. That contention is contra indicated by the
evidence of PW1 and her ability to produce Ext.P1 cheque, which is
admittedly issued to the petitioner by his bank to operate his account and
which admittedly bears the signature of the petitioner. While appreciating
the evidence of PW1 about the handing over of the cheque, it is relevant to
note the defence which is set up. It is the case of the petitioner that the
cheque was handed over to the husband of the complainant and that the said
Crl.R.P.No. 3296 of 2006 5
transaction was completed and liability discharged by payment of money
through DW1. If that be so, it passes ones comprehension as to why the
blank signed cheque given as security was not taken back. There is no
explanation as to why DW1 did not take any acknowledgment/voucher
from the deceased husband of the complainant when the liability was
discharged and the transaction closed. The inherent improbability in the
case of discharge pleaded by the petitioner is also one circumstance that
must go to assure the court about the acceptability of the oral evidence of
PW1. Once the oral evidence of PW1 is accepted, the presumption under
Section 139 of the N.I. Act comes into play. That burden has not been
discharged by the petitioner. The plea of discharge through DW1 is also so
fragile and brittle that it must fall to the ground as improbable and
unacceptable. No other contentions on merits have been raised. I am
satisfied that the challenge on merits must, in these circumstances, fail.
8. The learned counsel prays that leniency may be shown on the
question of sentence. I find merit in the prayer for leniency. I have
already adverted to the principles governing imposition of sentence in a
prosecution under Section 138 of the N.I. Act in the decision in Anilkumar
Crl.R.P.No. 3296 of 2006 6
v. Shammy (2002 (3) KLT 852). In the facts and circumstances of the
case, I do not find any compelling reasons which can persuade this court
to insist on imposition of any deterrent substantive sentence of
imprisonment on the petitioner. Leniency can be shown on the question of
sentence, but subject to the compulsion of ensuring adequate and just
compensation to the victim/complainant, who has been compelled to wait
from 2001 and to fight two rounds of legal battle for the redressal of his
genuine grievances.
9. In the nature of the relief which I propose to grant, it is not
necessary to wait for issue and return of notice to the respondent.
10. In the result:
(a) This revision petition is allowed in part.
(b) The impugned verdict of guilty and conviction of the petitioner
under Section 138 of the N.I. Act are upheld.
) But the sentence imposed is modified and reduced. In
supersession of the sentence imposed on the petitioner by the courts below,
he is sentenced to undergo imprisonment till rising of court. He is further
Crl.R.P.No. 3296 of 2006 7
directed under Section 357(3) Cr.P.C. to pay an amount of Rs.27,000/-
(Rupees twenty seven thousand only) as compensation and in default to
undergo S.I. for a period of one month. If realised the entire amount shall
be released to the complainant.
11. The petitioner shall appear before the learned Magistrate on or
before 30.11.2006 to serve the modified sentence hereby imposed. The
sentence shall not be executed till that date. If the petitioner does not so
appear, the learned Magistrate shall thereafter proceed to take necessary
steps to execute the modified sentence hereby imposed.
(R. BASANT)
Judge
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