High Court Kerala High Court

P.V.Varghese vs K.P.Padmanabhan Nair on 2 June, 2010

Kerala High Court
P.V.Varghese vs K.P.Padmanabhan Nair on 2 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1659 of 2010()


1. P.V.VARGHESE, INCHAKALAYIL HOUSE,
                      ...  Petitioner

                        Vs



1. K.P.PADMANABHAN NAIR, UPASANA HOUSE,
                       ...       Respondent

2. STATE OF KRALA, REPRESENTED BY THE

                For Petitioner  :SRI.MATHEW JOHN (K)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :02/06/2010

 O R D E R
                     V.K.MOHANAN, J.
                    =============
                  Crl.R.P. No.1659 of 2010
                 ==================
            Dated this the 2nd day of June 2010


                          O R D E R

This revision petition is preferred by an accused in a

prosecution for the offence under Section 138 of the Negotiable

Instrument Act as he is aggrieved by the conviction and sentence

imposed against him.

2. The case of the complainant against the revision

petitioner is that towards the discharge of the debt of

Rs.2,70,000/-which was due to the complainant, the revision

petitioner issued two cheques, one for Rs.1,20,000/- which is

dated 31.12.2006 and another cheque dated 31.03.2007 for

Rs.1,50,000/- and when those cheques were presented for

encashment, returned as dishonoured for want of sufficient

funds in the account maintained by the revision petitioner.

According to the complainant, though a formal demand was

made through the counsel intimating him the dishonour of the

Crl.R.P. No.1659 of 2010

: 2 :

cheques and demanding for repayment of the amount covered by

the two cheques but no payment was made and hence he

approached the Judicial First Class Magistrate-V, Kottayam with

the above allegation. The learned Magistrate took cognizance

for the offence under section 138 of the N.I.Act and instituted

S.T.No.2039/2007. During the course of the trial, the

complainant himself examined as PW1 and he gave oral evidence

and besides the above he produced Exts.P1 to P8 documents.

Absolutely no evidence was adduced from the side of the

defence. The learned Magistrate, after considering all the

materials and evidence on record, has held that the complainant

has established the execution and issuance of Ext.P1 series of

cheques and accordingly held that the complainant is entitled to

get benefit of presumption u/s. 118 and 139 of the N.I.Act. Thus,

the trial court found the revision petitioner guilty and

accordingly convicted him u/s. 138 of the N.I.Act and sentenced

him to undergo simple imprisonment for two months and also

directed to pay a sum of Rs.2,70,000/- to the complainant as

compensation as envisaged u/s.357(3) of Cr.P.C. and default

sentence is fixed as 15 days simple imprisonment. Challenging

Crl.R.P. No.1659 of 2010

: 3 :

the above verdict, the conviction and sentence, the revision

petitioner has preferred Crl.A.No.286/2009, but by judgment

dated 06.02.2010 the learned Sessions Judge, Kottayam

dismissed the appeal. It is the above judgments of the courts

below and the conviction and sentence imposed against the

revision petitioner, challenged in this revision petition.

3. I have heard Sri.Mathew John, the learned counsel

appearing for the revision petitioner and also perused the

judgments of the courts below.

4. On a consideration of the arguments advanced by the

learned counsel for the revision petitioner and on perusal of the

judgments, it appears that the accused/revision petitioner has

admitted the execution and issuance of the cheques, though not

as claimed by the complainant. According to the

accused/revision petitioner the two cheques which are the

subject matter in the present transaction, along with two other

cheques hand over to the son of the complainant by way of

security towards the repayment of an amount of Rs.50,000/-

borrowed by the accused from the son of the complainant. The

trial court as well as the lower appellate court has considered

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the above plea of the revision petitioner. Admittedly no

materials or evidence produced by the revision petitioner to

substantiate the above contention. When the accused in a

transaction for the offence u/s.138 of the N.I.Act, admits the

execution and issuance of the cheque, though not as claimed by

the complainant or connected with the transaction pleaded by

the complainant, it is heavily upon the accused to substantiate

his pleading as to how the cheque in question reached in the

hands of the complainant and also to establish that the same

were reached in the hands of the complainant through the

transaction claimed by him. But in the present case no such

materials or evidence produced. Therefore, I find no fault with

the finding and facts arrived on by the trial court as well as

lower appellate court in favour of the complainant, on the basis

of the materials and evidence furnished by the complainant.

Therefore, in the absence of any specific case to exercise the

revisional jurisdiction of this court to interfere with the

concurrent finding of the court below, I have to approve the

conviction recorded by the trial court as well as the lower

appellate court against the revision petitioner.

Crl.R.P. No.1659 of 2010

: 5 :

5. The learned counsel for the revision petitioner

submitted that breathing time may be granted to the revision

petitioner to make the payment and leniency may be shown in

the matter of sentence. Considering the facts and circumstances

of the case, I am of the view that the said submission can be

considered favourably in favour of the revision petitioner but

subject to other relevant inputs.

6. It has to be noted that the two cheques in question

dated 31.12.2006 and 31.03.2007 were for a total sum of

Rs.2,70,000/-. Thus going by the evidence on record it is crystal

clear that a total sum of Rs.2,70,000/- which belonging to the

complainant is with the revision petitioner. The trial court after

finding the guilt of the revision petitioner sentenced him to

undergo simple imprisonment for two months and further

directed to pay a sum of Rs.2,70,000/- to the complainant as

compensation, in case of any default, the revision petitioner is

directed to undergo simple imprisonment for 15 days. In the

decision of the Supreme Court in Ahammedkutty v.

Abdullakoya represented in 2009(6) Supreme Court cases

661, the Apex Court has held that no default sentence can be

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imposed on failure of paying the compensation as directed under

Sec.357(3) of Cr.P.C. The Apex court has also held in the

decision in Damodar S. Prabhu v. Sayed Babulal. H

represented in J.T.2010(4) SC Page 457 that in the case of

dishonour of cheque the court has to consider the remedial

aspect than the punitive aspect. Considering the above settled

legal position and considering the fact that a sum of

Rs.2,70,000/- was in the hands of the revision petitioner for more

than 4 years. I am of the view that the sentence of imprisonment

can be reduced and the sentence of fine can be imposed, fixing

the fine amount little more than the cheque amount and the

default sentence can be fixed so as to ensure the payment of the

amount to the complainant.

In the result, this revision petition is disposed of

confirming the conviction of the revision petitioner under

Sec.138 of the N.I.Act as recorded by the trial court as well as

lower appellate court. Accordingly the revision petitioner is

sentenced to undergo a simple imprisonment till the rising of the

court and he is also sentenced to pay a fine of Rs.3,00,000/- and

in default in paying the fine amount, he is directed to undergo

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simple imprisonment for a period of six months and on

realisation of the fine amount, a sum of Rs.2,95,000/- shall be

paid to the complainant under Sec.357(1)(b) of Cr.P.C.

Accordingly, the revision petitioner is directed to appear before

the trial court on 2.9.2010 so as to receive the sentence and to

pay the fine amount. If there is no failure on the part of the

revision petitioner in appearing before the court below as

directed above and making the fine amount, the trial court is

free to initiate coercive steps to secure the presence of the

revision petitioner and to execute the sentence. The execution of

the warrant, if any, pending against the revision petitioner shall

be deferred till 2.9.2010.

V.K.MOHANAN, JUDGE

Jvt