IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 376 of 2003()
1. PARAMESWARAN, S/O. NARAYANASWAMY,
... Petitioner
Vs
1. RAJAGOPALAN, S/O.ANANTHA RAMAYYAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.JAYACHANDRAN
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :19/06/2009
O R D E R
M.N.KRISHNAN, J.
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CRL.A.No.376 OF 2003
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Dated this the 19th day of June, 2009
J U D G M E N T
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This is an appeal preferred against the judgment of the
Addl.Sessions Judge, Fast Tract Court No.1, Palakkad
Division, in Crl.A.No.209/1997. The said appeal arose out of
the conviction and sentence passed in S.T.No.3931/1996
filed u/s.138 of Negotiable Instruments Act. The brief facts
necessary for the disposal of the appeal are stated as follows
:- It is the case of the complainant, that the accused had
borrowed a sum of Rs.30,000/- for the conduct of his
daughter’s marriage and had paid Rs.5,000/- and later
issued a cheque for the discharge of the entire liability and
when it was presented for enashment, it returned with
endorsement `insufficiency of funds’ and hence the action.
The case of the defence as seen from the 313 question is to
the effect that he had borrowed a sum of Rs.25,000/- and
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had paid Rs.5,000/- back and that he had furnished two
blank cheques as security for the amount and that he had not
issued Ext.P1 cheque at all. The trial court on appreciation
of the evidence found the case of the complainant to be true
and therefore, convicted the accused and sentenced him to
undergo imprisonment for a period of 2 months and to pay a
fine of Rs.5,000/- in default with a further imprisonment of
one month. It was against that decision the appeal was
preferred. The appellate court took stand that when the
amount advanced is only Rs.30,000/- and Rs.5,000/- is
admittedly received back, if a cheque of Rs.45,000/- is to be
issued, then the rate of interest would come to 40 % and
therefore held that it is not towards the discharge of a legally
enforcible liability. The learned counsel for the respondent
had sited the ruling of the Division Bench of this court
reported in Joseph Sartho V. Gopinathan Nair, 2008 (4) KLT
509. It was a case were the amount outstanding on the date
of the issuance of the cheque was Rs.4,61,400/-. The
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cheque was issued on 4.6.1999. On 9.6.1999, the accused
therein paid a sum of Rs.2,26,400/- and the balance due to
the complainant was only Rs.2,35,000/-. But without
disclosing this factor at all, the cheque was presented for
encashment which ultimately got dishonoured. It was held
that even going by the admitted facts of the case, the amount
outstanding on the date of presentation of the cheque was
only Rs.2,35,000/- and therefore the presentation of the
cheque for the realisation of a larger amount will amount to
presenting negotiable instrument for a liability which is more
than what is really due. There can not be any quarrel with
the said proposition but whether the said decision can be
applied to the facts of the present case is the question to be
considered. Demanding exorbitant interest is there from time
immemorial. When the matter comes before the civil court,
the civil court by various provisions of law some times
declare that the interest claim is unconscionable. But prima
facie it has to be stated that when the parties enter into a
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contract with both their eyes open and knowing the
consequences of what they are doing, the terms of the
contract can not be altered by the court, unless there are
specific circumstances to do so. In this case, no where the
accused has got the case of a unconscionable interest. His
case is that of issuing two blank signed cheques as security
for the transaction. The court of law is ordinarily expected to
answer the question of dispute that arises between the
parties and not to go out of the relam of the contract suo
moto and come to a conclusion which no party has. I am
afraid, that the learned Sessions Judge has misdirected
himself, most probably feeling of high percentage of interest
but that can not be done in a case where the party desires to
calculate the amount and issue the cheque towards the
discharge of the liability. So the said finding of the appellate
court can not be accepted.
2. Now so far as other facts are concerned, the
complainant has deposed before the court that he had
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advanced a sum of Rs.30,000/- towards which, Rs.5,000/-
has been paid back and that the balance amount is covered
by Ext.P1 cheque. The case of the accused is that the he
had issued two blank signed cheques as security, is only a
contention for contention sake not substantiated by any
materials. I am conscious of the facts that in criminal cases
no accused can be compelled to let in evidence and that non
production of evidence by an accused can not be
commended upon by a court in view of the provisions of
S.315 of Cr.P.C. But in S.138 of Negotiable Instruments Act
cases when materials are supplied by both the sides, in order
to arrive at a decision regarding the correctness of the case,
the preponderance of probability of both versions can be
weighed to arrive at a decision. Here, we have got only one
sides evidence, that is of the prosecution and it has to be
held that PW1’s evidence is sufficient to prove the
advancement and issuance of the cheques towards the
discharge of the liability. So far as other statutory
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requirements are concerned PWs 2 and 3 had spoken about
them and so all ingredients necessary to constitute S.138 of
Negotiable Instruments Act has been established in this
case. Therefore, I reverse the judgment of the appellate
court and confirm the conviction u/s.138 of Negotiable
Instruments Act passed by the trial court. Now comes the
question of sentence. The trial court has sentenced the
accused to undergo imprisonment for a period of 2 months
and to pay a fine of Rs.5,000/- in default of which, a further
imprisonment for a period of one month. If the accused in
the case really wants to wipe off the liability, I do not want to
send him into prison and therefore, especially in the light of
the amended provisions of Negotiable Instruments Act, which
enables any competent court of jurisdiction to levy a fine of
double the amount of the cheque, I feel justice can be met by
directing to pay a fine instead of imprisonment. Therefore,
the criminal appeal is disposed of as follows :-
1. The order of judgment of acquittal passed by the
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learned Sessions Judge is set aside.
2. The accused is found guilty u/s.138 of Negotiable
Instruments Act and is sentenced to pay a fine of
Rs.45,000/- failing which he has to undergo simple
imprisonment for a period of 2 months. When such
amount is paid or realised, let that amount be
disbursed to the complainant on proper application.
The accused shall pay the fine on or before
10.9.2009, failing which the trial court shall execute
the sentence.
M.N.KRISHNAN, JUDGE
ami.