IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 319 of 2001()
1. REMESH BABU
... Petitioner
Vs
1. K. SURENDRA HEGDE
... Respondent
For Petitioner :SRI.SREEPRAKASH K.NAIR
For Respondent :SRI.T.P.KELU NAMBIAR (SR.)
The Hon'ble MR. Justice R.BASANT
Dated :10/06/2009
O R D E R
R. BASANT, J.
-------------------------------------------------
Crl.R.P. No. 319 of 2001
-------------------------------------------------
Dated this the 10th day of June, 2009
ORDER
This revision petition is directed against a concurrent
verdict of guilty, conviction and sentence in a prosecution
under Sec.138 of the Negotiable Instruments Act. The cheque
is for an amount of Rs.67,152.50. The cheque was allegedly
issued to the complainant by the accused for the discharge of a
legally enforceable debt/liability. The cheque, when presented,
was dishonoured on the ground of insufficiency of funds.
Notice of demand was duly issued. The same was received.
It did not evoke any positive response. It succeeded only in
evoking Ext.P5 reply denying the liability. The complainant,
after observing the statutory time table scrupulously, came to
court with a complaint. Cognizance was taken. The accused
Crl.R.P. No. 319 of 2001 -: 2 :-
denied the offence alleged against him. Thereupon, the
prosecution examined P.Ws.1 and 2 and proved Exts.P1 to P9.
The accused, in the course of cross-examination and when
examined under Sec.313 Cr.P.C. as also in Ext.P5 reply, stuck to
a fairly defenite stand. He took the stand that the cheque was
given earlier. The amount covered by the cheque was paid on
27/1/94 – the same date on which the cheque was presented for
encashment. There was an omission on his part to take back the
cheque. The cheque was misutilised and a false claim is now
being made by the complainant. No defence witnesses were
examined. Ext.D1 – a receipt issued in 1990 when a cheque was
handed over to the complainant, was marked. The accused also
marked Ext.D2 cash receipt which shows that the very same
cheque was received by the complainant and the said receipt
Ext.D2 was issued subject to realisation of the cheque.
2. The courts below concurrently came to the conclusion
that the complainant has succeeded in establishing all the
ingredients of the offence punishable under Sec.138 of the N.I.
Act. Accordingly, the courts below proceeded to pass the
impugned concurrent judgments.
3. The revision petitioner now faces a sentence of
imprisonment for a period of six months and to pay a fine of
Crl.R.P. No. 319 of 2001 -: 3 :-
Rs.5,000/-. In default of payment of fine, the accused was
directed to undergo simple imprisonment for a further period of
one month.
4. Before me, the learned counsel for the petitioner/accused and the respondent/complainant have advanced their arguments. The learned counsel for the
petitioner/accused assails the impugned concurrent judgments
on the following grounds:
(i) The courts below erred grossly in coming to the
conclusion that Ext.D2 receipt does not evidence discharge of
the liability under the cheque.
(ii) The sentence imposed is, at any rate, excessive.
5. Ground No.(i): That there was an outstanding liability
on the date of presentation of the cheque i.e., 27/1/94 is not
practically disputed. While the complainant alleges that Ext.P2
cheque was issued for the due discharge of a liability and Ext.D2
receipt was issued subject to realisation of the said cheque, the
accused contends that Ext.D2 was issued when cash and not
cheque was handed over to the complainant.
6. Both the courts have come to the conclusion that Ext.D2
receipt does not evidence receipt of any cash; but only evidences
receipt of Ext.P2 cheque by the complainant. According to the
Crl.R.P. No. 319 of 2001 -: 4 :-
complainant, when the cheque is received, Ext.D2 receipt was
issued and the cheque was sent to the bank on the same day for
collection. Ext.D2 does not evidence any cash payment; it
evidences the payment made by cheque under Ext.P1.
7. The factual dispute falls in a short matrix. Does Ext.D2
evidence payment of cash as contended by the learned counsel
for the petitioner or does it evidence payment of the amount by
Ext.P2 cheque? This is the crucial question.
8. A careful reading of Ext.D2 knocks the bottom out of the
theory advanced by the accused. It is no where mentioned that
the amount was received by cash even though Ext.D2 receipt
bears the heading “cash receipt”. The accused is obviously
attempting to take advantage of the heading in Ext.D2 which
describes itself to be a cash receipt. But the body of the receipt
as also the printed endorsement thereon clearly shows that even
when the cheques or drafts are issued a cash receipt like Ext.D2
is issued by the complainant. It is made clear in the receipt that
the receipt is issued to acknowledge Ext.P2 cheque. No where
it is mentioned that the amount is received by cash. The
endorsement on the foot of the receipt shows that “the receipt
issued subject to realisation of cheque/draft”. The version of the
complainant is probablised and no semblance of a reasonable
Crl.R.P. No. 319 of 2001 -: 5 :-
doubt is left in the mind of the court on the nature of the
transaction.
9. An amount of Rs.67,152.50 was in arrears on 27/1/94.
To discharge this liability, Ext.P2 cheque was issued and Ext.D2
receipt was issued by the complainant. In Ext.D2 receipt, it is
made clear that the receipt is being issued to acknowledge the
payment by cheque No.935020 dated 27/11/93. The endorsement
on the foot of it shows that the receipt is issued “subject to
realisation of the cheque.” In this context we have the evidence
of P.Ws.1 and 2. The evidence of P.W.2 shows that the same
remains unchallenged. It is he who had issued Ext.P2.
According to him, Ext.D2 is issued to acknowledge receipt of
Ext.P2 cheque on the date when it was sent to the bank for
collection. According to him, it has carefully been shown in
Ext.D2 that the receipt was issued subject to realisation of the
cheque.
10. No semblance of a doubt enters in my mind about the
nature of the transaction and the circumstances under which
the cheque Ext.P2 and receipt Ext.D2 were issued. The
challenge on this ground must hence fail.
11. Coming to the question of sentence, I have already
adverted to the principles governing imposition of sentence in a
Crl.R.P. No. 319 of 2001 -: 6 :-
prosecution under Section 138 of the N.I Act in the decision
reported in Anilkumar v. Shammi [2002(3) KLT 852]. The
cheque is for an amount of Rs.67,152.50. I am satisfied that
there are no compelling reasons which can persuade this
Court to insist on imposition of any deterrent substantive
sentence of imprisonment. Leniency can be shown on the
question of sentence, but subject only to the compulsion of
ensuring adequate and just compensation for the
victim/complainant, who has been compelled to fight three
rounds of legal battle by now and to wait from 1994 for the
redressal of his grievances. He deserves to be compensated
satisfactorily. The challenge can succeed only to the above
extent.
12. In the result:
(a) This Crl.R.P 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;
(c) But the sentence imposed is modified and reduced. In
supersession of the sentence imposed on the petitioner by the
court below, he is sentenced to undergo imprisonment till rising
of court. He is further directed to pay an amount of Rs.90,000/-
as compensation under Section 357(3) Cr.P.C and in default to
Crl.R.P. No. 319 of 2001 -: 7 :-
undergo simple imprisonment for a period of three months. If
the amount is not paid directly to the complainant and is
deposited or recovered through court, the same shall be released
to the complainant entirely.
13. The petitioner shall have time till 25/7/09 to make the
payment and avoid the default sentence. The petitioner shall
appear and his sureties shall produce him before the learned
Magistrate on or before that date for execution of the modified
sentence hereby imposed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
Crl.R.P. No. 319 of 2001 -: 8 :-
R. BASANT, J.
————————————————-
Crl.R.P. No. 319 of 2001
————————————————-
Dated this the 10th day of June, 2009
ORDER