Allowed

K.J.George v. P.K.Pailo

Kerala HC2 Feb 2012Crl.Rev.Pet/262/2012

Case brief

AI extract

What is this about?

The High Court confirmed the conviction and sentence for cheque dishonour under Section 138. While affirming the appellate court's modification of the sentence to imprisonment till the rising of the court, the Court granted two months to the appellant to pay the awarded compensation.

What did the court decide?

Petitioner granted two months to pay the compensation amount; failure to pay will attract the default clause sentence.

K.J.George Vs P.K.Pailo — Cheque Dishonour | Kerala HC (2012)

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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 P.BHAVADASAN

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THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933

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CRRP.No. 262 of 2012 ()

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----------------------CRA.NO.35/2008 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM CC.NO.700/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II (MOBILE), KOTTAYAM

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REVISION PETITIONER/APPELLANT/ACCUSED

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K.J.GEORGE,

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S/O. JOSEPH, KUZHIYAMKALAYIL, VADAVATHOOR P.O. KOTTAYAM.

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BY ADV. SRI.B.PREMOD

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RESPONDENT/COMPLAINANT:

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1. P.K.PAILO,

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PAREKADAVIL, CHENGALAM SOUTH P.O., KOTTAYAM-686 022.

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2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN-682 031

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R1 BY ADV.SRI.SIBY MATHEW SRI.B.PREMNATH SRI.PHILIP J.VETTICKATTU R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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P. BHAVADASAN, J.

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- - - - Crl.R.P. No. 262 of 2012

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Dated this the 2^nd day of February, 2012.

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ORDER

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The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.1,40,000/- to the complainant under Section 357(3) of Cr.P.C., and in default, to undergo simple imprisonment for six months. In appeal, the conviction was confirmed, but the lower appellate court was of the opinion that the sentence was too harsh and was not warranted in the nature of the offence committed by the accused. Accordingly, the sentence was reduced to imprisonment till the rising of the court by maintaining the compensation part of the trial court sentence.

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Crl.R.P.262/2012.

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According to the complainant, the accused had borrowed a sum of Rs.1,40,000/- from him. In order to discharge the debt due to the complainant, the accused is alleged to have issued Ext.P1 cheque dated 15.12.2001. When the cheque was presented for enchashment, it was returned for want of funds in the account of the accused. Statutory notice issued to the accused did not invoke any reply, nor was the amount paid. Hence the complaint was lodged.

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Cognizance of the offence was taken by the trial court. On appearance of the accused, particulars of the offence were read out to the accused, to which he pleaded not guilty and claimed to be tried. Complainant examined himself as P.W.1 and had Exts.P1 to P6 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C., in which he denied all the incriminating circumstances brought out in evidence

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Crl.R.P.262/2012.

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against him and maintained that he has discharged the debt due to the complainant.

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It would appear from a reading of the judgment of the trial court that initially the case was disposed of by the trial court by judgment dated 28.6.2006 and the matter was carried in appeal as Crl.Appeal No.418 of 2006 before the Sessions Court, Kottayam. The appellate court allowed the appeal and remanded the matter to the trial court with a direction to give adequate opportunity to the appellant to adduce evidence. After remand D.W.1 was examined. On a consideration of the materials before it, the trial court came to the conclusion that the complainant had succeeded in establishing his case. It was also found that the plea of discharge put forward by the accused was not substantiated. Accordingly, the accused was found guilty. The lower appellate court on an independent evaluation of the evidence came to the conclusion that there is no ground

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Crl.R.P.262/2012.

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to interfere with the finding of the court below regarding the guilt of the accused and confirmed the conviction, but modified the sentence.

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Learned counsel appearing for the revision petitioner pointed out that the court below has not properly considered Ext.D1 document produced at the appellate stage, which is a judgment in O.S.85 of 2002 before the Munsiff's Court, Kottayam instituted by the accused against the complainant and another person for the relief of prohibitory injunction and mandatory injunction. According to the learned counsel, the definite plea of the accused was that he had borrowed a sum of Rs.1,10,000/- and at that time the complainant insisted for signed blank cheque with stamp papers, which were given to him. A sum of Rs.2,66,000/- was repaid in discharge of the debt. But since the complainant wanted more amounts, he refused to return the cheque and stamp papers. That ultimately resulted in

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Crl.R.P.262/2012. 5

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filing of O.S.85 of 2002 for return of the documents also. It is also pointed out that the lawyer notice was issued to the complainant calling upon him to return the documents. It was contended on behalf of the revision petitioner that infact there was a criminal proceedings against his wife also based on a cheque alleged to have been issued by her, which though ended in conviction by the trial court, in appeal she was acquitted. The very same standard of proof should have been applied in the case on hand also. It is alleged that this court may call for the records in the other case and pursued the same, so it can be seen that the plea put forward by the complainant is false.

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The complainant got himself examined as P.W.1. He had Exts.P1 to P6 marked. Both the courts below have appreciated the evidence in considerable detail and had come to the conclusion that the cheque in question was issued to discharge the debt due to the complainant.

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Crl.R.P.262/2012.

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One has to notice that the case was initially disposed of by judgment dated 28.6.2006. In appeal, the same was allowed and the matter was remanded to the trial court giving an opportunity to the accused to adduce evidence. The accused thereafter chose to examine his son for reasons best known to him as D.W.1.

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From a reading of the judgment of the court below, it is seen that the main plea of the revision petitioner is one of discharge. If that be so, the burden is on him to establish the said plea. Even though the accused claimed discharge of the debt due to the complainant, he chose to remain away from the box and put up his son in the box, who had only hearsay knowledge about the same. The lower appellate court has noticed that the evidence of D.W.1 is contrary to the statement given by the accused in his Section 313 statement. The evidence of D.W.1 has been referred to in detail by both the courts below. Evidence of

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Crl.R.P.262/2012. 7

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D.W.1 is to the effect that the accused has documents to show that the amount borrowed has been repaid. But curiously enough, none of those documents were produced. Therefore, the courts below were not inclined to take the view that the plea of discharge has been established.

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It is true that a suit is seen to have been instituted by the accused against the complainant and others as O.S. 85 of 2002, which contained two prayers, namely, for prohibitory injunction and for mandatory injunction. Copy of the judgment is produced before the lower appellate court, which is marked by the lower appellate court as Ext.D1. The lower appellate court has noticed that the suit was dismissed declining the reliefs to the accused.

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One of the contentions taken before this court is that the written statement in the suit and the averments in the complaint in the present case are inconsistent and

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Crl.R.P.262/2012.

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ought to have been weighed with by the courts below. First of all, neither the plaint nor the written statement is produced in this case nor the respective parties confronted with the respective documents. There is no provision to call for the documents in some other case for the purpose of perusing and deciding this case. If as a matter of fact, the accused had a case that the pleadings were inconsistent, it was his obligation to confront the complainant with the respective documents and seek his explanation. Having not done so, he cannot be heard to say that this court should simply look into the documents and draw conclusions.

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Equally without force is the contention that since the complaint against the wife of the accused ended in acquittal at the appellate stage, that should lead to the conclusion that the debt has been discharged and the accused should be acquitted in this case also. It was also contended that both the cases are based on same cause of

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Crl.R.P.262/2012.

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action and on this ground also this prosecution should fail.

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Apart from the fact that the judgment in the appeal filed by the wife of the petitioner herein is not before this court, the fact remains that the two cases were tried separately and independently and independent evidence was adduced in both the cases. In the case on hand, there was a remand enabling the accused to adduce evidence as sought for by him. It is to be noticed that the accused chose to remain away from the box and put his son, who had no knowledge about the transaction and who had only knowledge about what was told to him by his father. Apart from the above fact, the lower appellate court has noticed the inconsistencies and contradictions in the reply given by the accused in the statement given under Section 313 Cr.P.C. when incriminating circumstances were put to the accused for his explanation.

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It was also contended that before the

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Crl.R.P.262/2012.

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complaint was lodged, the suit had been instituted and a criminal complaint has been filed against the complainant. Except the ipse dixit, there are absolutely no documents to prove the said fact. One cannot omit to note that the specific plea of the accused is one of discharge and when he says that he has got documents to show that the amount has been repaid and the return of the cheque was sought for, it was for him to establish the said fact. There was no evidence to establish that the discharge plea was true.

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Ext.D1 produced before the lower appellate court can be of little help to the revision petitioner. There is nothing in that judgment which would enable the accused to contend for the position that the plea of discharge has been proved. There was a suit for permanent injunction restraining the complainant from trespassing into the plaint schedule property, of which the plaintiffs were licensees and also seeking mandatory injunction for return of the

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Crl.R.P.262/2012.

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documents. As already noticed, the suit was dismissed. The issue regarding the discharge was not the subject matter of the suit nor the decision rendered with regard to that aspect.

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It is significant to notice that the lower appellate court has noticed that even though statutory notice was served on the accused, he chose to remain passive. This, according to the lower court goes a long way in establishing the culpability of the accused. The lower courts cannot be blamed for drawing such a conclusion. If as a matter of fact the accused had a case that he had discharged the entire debt and had sought for return of documents from the complainant and the complainant had misused the same, he would have immediately responded to the notice. Instead he chose to remain passive, which led the courts below to draw adverse inference against him.

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Crl.R.P.262/2012.

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It is significant to notice that the accused admits financial transactions with the complainant. As already noticed, the complainant has adduced evidence sufficient enough to show that Ext.P1 cheque was issued by the accused. Going by the evidence of D.W.1, the son of the accused, he has no case that either blank cheque was given or signed stamp papers were given to the complainant. The lower appellate court has noticed that the accused has no consistent case also.

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The findings of the courts below are based on an appreciation of the evidence in the case and are not shown to be perverse or contrary to the evidence on record. If that be so, interference under revisional jurisdiction is uncalled for.

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Learned counsel appearing for the revision petitioner then prayed that some time may be granted to the revision petitioner to pay the compensation awarded

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Crl.R.P.262/2012.

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by the lower appellate court so as to ward of the default clause.

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Considering the nature of the transaction between the parties and the facts and circumstances of the case, it is felt that some time can be granted to him to pay the compensation amount.

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In the result, while confirming the conviction as confirmed by the lower appellate court and the sentence passed by the lower appellate court, the petitioner is granted two months from today to pay the compensation amount awarded by the lower appellate court, in default of payment of which, he shall suffer the default clause sentence awarded by the lower appellate court.

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The revision petition is disposed of as above.

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P. BHAVADASAN, JUDGE

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sb.

K.J.George v. P.K.Pailo

Case brief

What is this about?

What did the court decide?

K.J.George v. P.K.Pailo

Case brief

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