Partly allowed

Kunjan, S/O.Kandan v. v. Mohammed Ismail & Another

Kerala HC29 Jan 2008Crl.Rev.Pet/182/2008

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition in part, upholding the conviction under Section 138 NI Act but modifying the compensation amount to Rs.60,000 and the default sentence, granting a stay on execution pending payment.

What did the court decide?

Petition allowed in part. Conviction and sentence upheld. Compensation modified to Rs.60,000. Default sentence stayed until payment deadline.

Kunjan, S/O.Kandan Vs v. Mohammed Ismail & Another — Cheque Dishonour | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT

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TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929

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Crl.Rev.Pet.No. 182 of 2008()

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----------------------------CRA.457/2004 of ADDL. SESSIONS COURT (FAST TRACK-II), PALAKKAD

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STC.6633/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR

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REVN. PETITIONER: APPELLANT/ACCUSED:

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KUNJAN, S/O.KANDAN, JR.SUPERINTENDENT (RETD), ITI, MALAMPUZHA, PALAKKAD, RESIDING AT THANNEERPANTHAL, KINASSERY, PALAKKAD.

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BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

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RESPONDENTS: COMPLAINANT AND NON-PARTY:

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V.MOHAMMED ISMAIL, S/O.VELLAPPA RAWTHER, MUTHALAMTHODE, KUTTIPPALLAM, CHITTUR.

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R. BASANT, J.

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Crl. R.P. No. 182 OF 2008

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Dated this the 29^th day of January, 2008

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O R D E R

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This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.50,000/-. It bears the date 03.04.2001. The courts below have imposed a sentence of simple imprisonment for a period of six months. There is a further direction to pay an amount of Rs.55,000/- as compensation under Section 357(3) Cr.P.C. and in default to undergo simple imprisonment for a further period of three months.

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The signature in the cheque is admitted. That the cheque after affixing the signature of the petitioner was handed over by him voluntarily to another is also admitted. Notice of demand issued to the complainant though duly

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received and acknowledged, did not admittedly evoke any response. The complainant examined himself as PW1 and the Manager of the Bank as PW2. Exts.P1 to P5 were marked on his side. The accused, in the course of the trial, took up a contention that the cheque was not handed over to the complainant for the due discharge of any legally enforcible debt or liability but it was handed over by him to one Chandran as security as a signed blank cheque, when they entered into some transaction. The liability in that transaction was discharged but the said Chandran could not return the blank signed cheque as it was allegedly lost from his possession. After the commencement of this prosecution, the accused and the said Chandran had entered into Ext.D1 agreement in which the said Chandran had admitted these facts. The accused did not examined the said Chandran or himself - the parties to Ext.D1 but instead, examined DW1, an alleged attestor to the document/agreement Ext.D1.

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The courts below came to the conclusion that

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Ext.D1 cannot be accepted and acted upon to prefer to accept the version of the accused. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly, they proceeded to pass the impugned concurrent judgments.

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The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner assails the impugned judgments on two grounds.

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First of all, it is contended that the cheque was not issued for the due discharge of any legally enforcible debt or liability. It is the contention of the petitioner that the cheque was handed over to one Chandran as a blank signed cheque, which was allegedly lost from the possession of the said Chandran. The contention is that the complainant somehow

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came into possession of the said cheque lost by the said Chandran.

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In support of this theory, we have only Ext.D1 agreement marked through DW1 attestor. The counsel contends that the accused has successfully discharged his burden under Section 139 of the N.I. Act and a reasonable doubt must be held to be generated against the case of the complainant. In these circumstances, the accused may be acquitted, it is urged.

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I find absolutely no merit in this contention. In support of the execution of Ext.P1 cheque, we primarily have the oral evidence of PW1, the complainant. The signature in the cheque is admitted. The admission of signature is not synonymous with admission of execution of the cheque. But, we have the evidence of the complainant about the execution of the cheque. That evidence of the complainant is eminently supported by his ability to produce Ext.P1 cheque drawn on a cheque leaf issued to the petitioner by his bank to operate his

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account. The said cheque admittedly bears the signature of the petitioner also. The evidence of PW1 is satisfactorily corroborated by his ability to produce Ext.P1 cheque. Of course the petitioner can succeed if he generates a reasonable doubt about this version of the complainant/PW1 about the execution of the cheque. The question is whether he has succeeded in doing the same.

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The bottom is knocked out of the theory advanced by the accused when we consider the eloquent, artificial and unnatural conduct of the petitioner who in spite of the fact he received the notice of demand duly sent to and acknowledged by him did not choose the reply to the said notice of demand. The version of the complainant is thus supported and corroborated by the significant inaction on the part of the petitioner when he received notice of demand. His version that he went and met the said Chandran and the said Chandran assured that there shall be no problems and that he did not think it necessary to issue a reply notice to the

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complainant, cannot be swallowed by any prudent mind.

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It is significant that the petitioner did not enter into Ext.D1 agreement with the said Chandran till this prosecution was launched. Ext.P1 was executed long after the commencement of this prosecution. It is significant that the said Chandran was not examined to prove Ext.P1. Why the said Chandran did not contact or inform the petitioner when he lost the cheque is not explained at all. DW1 is only an attestor to Ext.D1 and even accepting his evidence that he is an attestor, his evidence is not sufficient to prove the contents of Ext.D1. The mere fact that DW1 has tendered evidence to prove the execution of Ext.D1 is certainly not sufficient to hold that the contents of Ext.D1 have been proved. In these circumstances, Ext.D1 and the oral evidence of DW1 cannot at all establish the version advanced by the accused nor can they succeed in generating a reasonable doubt against the version of the complainant.

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The execution of the cheque is satisfactorily

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proved. Once execution is proved or admitted, a train of presumptions follows under sections 118 and 139 of the Negotiable Instruments Act. It is not necessary that the indictee must disprove the case of the complainant. Nor need he prove his case to the hilt or beyond the shadow of a reasonable doubt. But his case must certainly measure up to the requirement of a case proved by preponderance of possibilities and probabilities as in a civil case. The evidence of DW1 in Ext.D1, in the light of the materials adduced by the complainant, cannot be held to be sufficient to prove the case of the petitioner as expected of a litigant in a civil case. The defence set up by the accused must in these circumstances fall to the ground. The challenge on the first ground must in these circumstances fail.

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The learned counsel for the petitioner prays that leniency may be shown on the question of sentence. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in

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the decision reported in Anilkumar Vs. Shammi [2002(3) KLT 852]. 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 two rounds of legal battle by now and to wait from 2001 for the redressal of his grievances. He deserves to be compensated satisfactorily. The default sentence, it is by now trite, can be imposed to enforce payment of such compensation as declared in Harikrishnan and State of Haryana Vs. Sukhbir Singh & others [AIR 1988 SC 2127] and Suganthi Suresh Kumar Vs. Jagdeeshan [AIR 2002 SC 681].

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The challenge on the second ground can succeed only to the above extent.

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No other contentions are raised. In the nature of

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the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent.

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In the result:

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a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of

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the petitioner under Section 138 of the N.I.Act are upheld.

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c) The sentence imposed is also upheld. But the direction for payment of compensation and the default sentence are modified. The petitioner shall pay an amount of Rs.60,000/- (Rupees sixty thousand only) as compensation under Section 357(3) Cr.P.C and in default, to undergo simple imprisonment for a period of three months. If realised, the entire amount shall be released to the complainant as compensation.

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The petitioner shall have time till 15/03/2008 to raise and pay the amount and avoid the default sentence. The impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him

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before the learned Magistrate on or before 17/03/2008 for

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execution of the sentence.

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(R.BASANT, JUDGE)

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aks

Kunjan, S/O.Kandan v. v. Mohammed Ismail & Another

Case brief

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Kunjan, S/O.Kandan v. v. Mohammed Ismail & Another

Case brief

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