IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2806 of 2007()
1. V.J.THOMAS, C.P.7/332, THILAK NAGAR,
... Petitioner
Vs
1. D'CRUZ, SENIOR BRANCH MANAGER,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SERGI JOSEPH THOMAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/08/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 2806 OF 2007 A
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Dated this the 22nd day of August, 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 C.C.
No.150/2002 on the file of the CJM, Thiruvananthapuram
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
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Petitioner/accused failed to make the payment within 15 days of
receipt of the statutory notice.
4. The learned counsel for the revision petitioner made
the following further submissions in support of the revision:-
The two cheques in question were issued pursuant to
Exhibits D1 and D2 letters from the complainant Bank requesting
him to regularise the account of the Bank since the value of
shares pledged by the revision petitioner while availing of the
overdraft facility for Rs.8,00,000/- had subsequently gone down
necessitating an enhancement of the value of the security. So
Exts.P1 and P2 cheques were issued only for enhancing the value
of the security and at that time since there was no default on the
part of the revision petitioner with regard to the overdraft facility
availed by him, it cannot be said that Exts.P1 and P2 cheques
were issued in discharge of debt or liability within the meaning of
section 138 of the Negotiable Instruments Act. The person
examined as PW1 has not been proved to be the Manager of the
complainant Bank competent to give evidence before the court.
He was pretending ignorance of many of the questions put to him
since according to him, he can only make a statement only after
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verifying the records. On account of the Bank not selling the
shares in spite of timely advice by the revision petitioner, it is the
revision petitioner who has sustained heavy loss.
6. I am afraid that I cannot agree with the above
submissions. It may be true that Exts.P1 and P2 cheques for a
total amount of Rs.2,75,000/- (Rupees two lakhs seventy five
thousand only) were issued for regularising the accounts of the
Bank consequent on the reduction in the value of the security in
the form of shares retained by the Bank while permitting the
revision petitioner to avail the overdraft facility. But then, it cannot
be contended that the cheques are not supported by
consideration. It may also be true that at the time of handing over
the cheques, there was no default committed in the overdraft
facility extended to the revision petitioner. But the very fact that
the Bank has instituted a suit against the revision petitioner before
the Debt Recovery Tribunal for realising the debt due to the Bank
will definitely indicate that the revision petitioner had committed
default in the repayment of the loan. When the purpose of giving
Exts.P1 and P2 cheques was for enhancing the worth of the
security given to the Bank, it was definitely one for consideration
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and consequent on the default committed by the revision
petitioner, the Bank was fully justified in proceeding to encash the
cheques. I, therefore, do not find any merit in the said contention.
7. As regards the locus standi of PW1 to represent the
complainant Bank, it was not even suggested to him that he was
not the Manger of the complainant Bank. When the transaction is
with a Bank, a Manager, who has subsequently taken charge, can
depose only with regard to the records of the Bank. When the
competence of PW1 to give evidence on behalf of the complainant
was not specifically challenged, it is too late in the day for the
revision petitioner to contend that PW1 was not a competent
witness.
8. With regard to the further contention that it was the
revision petitioner who sustained heavy loss on account of the
Bank not selling the shares at the appropriate time, the remedy
the revision petitioner is to sue the Bank for the loss, if any,
sustained by him.
9. On the facts and circumstances of the case, the
conviction recorded by the courts below after a careful evaluation
of the oral and documentary evidence cannot be faulted and the
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same is confirmed.
10. What now survives for consideration is the question as
to whether a proper sentence has been imposed on the Revision
Petitioner. I am 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.2,75,000/- (Rupees two lakhs
and seventy five thousand only) within four 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