IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3281 of 2007()
1. SAJU PAUL, S/O.POULOSE,
... Petitioner
Vs
1. POULOSE, S/O.MATHAI, THENALIL VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.C.S.MANU
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/09/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 3281 OF 2007
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Dated this the 11th day of September, 2007
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C. the petitioner who was the accused in S.T. No.596/2004 on the
file of the J.F.C.M., Nedumkandom challenges the conviction entered
and the sentence passed against him for an offence punishable under
Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to
as ‘the Act’).
2. I heard the learned counsel for the Revision Petitioner and
the learned Public Prosecutor.
3. The learned counsel appearing for the Revision Petitioner
re-iterated the contentions in support of the Revision. The courts below
have concurrently held that the cheque in question was drawn by the
revision petitioner in favour of the complainant on the drawee bank, that
the cheque was validly presented to the bank, that it was dishonoured
for reasons which fall under Section 138 of the Act, that the
complainant made a demand for payment by a notice in time in
accordance with clause (b) of the proviso to Section 138 of the Act and
that the Revision Petitioner/accused failed to make the payment within
15 days of receipt of the statutory notice.
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4. The learned counsel for the revision petitioner contended
that the cheque was issued only as a security and it was really a real
estate transaction between the accused and the complainant and the
cheque was offered only as a security. He further submitted that the
cheque was not returned for want of sufficient fund in the account of the
accused but on the ground that drawer’s signature is incomplete. In
such a case there was an added burden on the complainant to prove
that cheque was returned for the reason that funds were insufficient in
the account of the accused. Neither the ledger was produced nor the
Bank Manager was examined to prove the ground on which cheque was
dishonoured.
5. Both the courts below have considered the defence with
regard to the cheque being offered as a security. The revision petitioner
is an educated person dealing with real estate matters and the very fact
he did not take any steps to get back the cheque in question will show
that the defence set up by him was a false one. With regard to the
contention that the return of the cheque on the ground that drawer’s
signature was incomplete could not amount to an offence punishable
under section 138 of the Negotiable Instruments Act, in the first place,
the said contention was not raised before the courts below. Secondly,
when the defence contention that the cheque was offered as a security
is ex facie not sustainable his further contention that the return of the
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cheque was not on a ground enumerated under section 138 of the
Negotiable Instruments Act cannot be entertained. Going by the
interpretation placed on section 138 of the N.I. Act, even instances like
closure of account, the accused countermanding payment etc. have
been judicially settled to be covered by the section. Such being the
position, I am not inclined to dislodge the finding recorded concurrently
by the courts below to the effect that the revision petitioner committed
the offence punishable under section 138 of the Negotiable Instruments
Act. Equally misconceived his contention that the non-production of the
ledger and non-examination of the Bank Manager is fatal to the
prosecution. The fact that Ext.P1 cheque has been dishonoured is
evidenced by Ext.P3 memo which is sufficient to hold that it was
dishonoured in terms of the section 138 of the N.I. Act. The accused did
not even sent a reply to the statutory notice issued to him by the
complainant. It is taking into account all the relevant facts and
circumstances of the case that the courts below concurrently found that
the revision petitioner has committed the alleged offence. Sitting in the
rarefied revisional jurisdiction, I find it impermissible for this court
substitute the finding of fact recorded by the courts below with its own
finding. Both the courts below have considered and rejected the
defence set up by the revision petitioner while entering the above
finding. The said finding has been recorded on an appreciation of the
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oral and documentary evidence. I do not find any error, illegality or
impropriety in the finding so recorded concurrently by the courts below.
The conviction was thus rightly entered against the petitioner.
6. What now survives for consideration is the question as to
whether a proper sentence has been imposed on the Revision
Petitioner. I am, however, inclined to modify the sentence imposed on
the revision petitioner provided he complies with the condition
hereinafter mentioned. Accordingly, if the revision petitioner pays to the
1st respondent complainant by way of compensation under section 357
(3) Cr.P.C. a sum of Rs.5,55,500/- (Rupees five lakhs fifty five thousand
and five hundred only) within six months from today, then he need to
undergo only imprisonment till the rising of the court. If on the other
hand, the revision petitioner commits default in making the payment as
aforesaid, he shall undergo simple imprisonment for three months by
way of default sentence. Money, if any, paid by the revision petitioner
pursuant to the orders, if any, passed by the lower appellate court shall
be refunded to the revision petitioner.
This Revision is disposed of confirming the conviction but
modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks