Allowed

Chandrashekharan Nair v. Kesava Pillai and Another

Kerala HC26 Aug 2016Crl.Rev.Pet/2799/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal revision petition challenging conviction and sentence for cheque dishonour under Section 138 NI Act. The court held the defence of lost blank cheque was implausible due to lack of immediate police complaint, confirmed conviction, but modified the imprisonment term to 'till rising of the court' considering the petitioner's senior citizen status.

What did the court decide?

Conviction and finding of guilt confirmed; imprisonment sentence modified to imprisonment till rising of the court.

Chandrashekharan Nair Vs Kesava Pillai and Another — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938

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Crl.Rev.Pet.No. 2799 of 2009

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AGAINST THE JUDGMENT IN CRA 357/2007 of ADDL.D.C.-II & MACT, MAVELIKKARA DATED 06-04-2009

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AGAINST THE JUDGMENT IN CC 664/2005 of J.M.F.C., HARIPAD DATED 10-05-

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2007

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REVISION PETITIONER/APPELLANT/ACCUSED:

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CHANDRASEKHARAN NAIR,

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S/O.NARAYANAN NAIR, KOICKAL VEEDU,, MUTHUKULAM SOUTH MURI, MUTHUKULAM VILLAGE.

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BY ADVS.SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR)

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RESPONDENTS/COMPLAINANT:

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KESAVA PILLAI, S/O.PADMANABHA PILLAI, SREE VILLA,, MUTHUKULAM SOUTH MURI, MUTHUKULAM VILLAGE.

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

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R1 BY ADV. SRI.S.M.ALTHAF

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R2 SENIOR GOVERNMENT PLEADER SRI.C.S.HRITHWIK

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON 26-08-2016 PASSED THE FOLLOWING:

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ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = = = = = = = = = = = =

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Crl.R.P.No.2799 of 2009

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= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 26^th day of August, 2016

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ORDER

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1.This revision arises from a private complaint filed by the 1^st respondent herein alleging an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The revision petitioner, who was the accused in C.C.No.664 of 2005 on the file of the JFCM-I, Haripad, challenges the conviction entered and the sentence passed against him.

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2.The case of the 1^st respondent/complainant was that the accused borrowed a sum of Rs.75,000/- from him and in order to discharge the said liability, Exhibit.P1 cheque was issued. On presentation of the said cheque by the 1^st respondent for collection, the same was dishonoured. Even after issuance of statutory notice, the accused did not pay the amount and hence the complaint.

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Crl.R.P.No2799/09

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3.The accused appeared and pleaded not guilty. The complainant was examined as PW1 and Exts.P1 to P10 documents were marked. On the side of the defence, two witnesses were examined as DWs 1 and 2 and Exts.D1 to D7 were marked. The learned magistrate convicted the accused of the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for four months and also directed to pay compensation of Rs.75,000/-, in default of which to undergo simple imprisonment for three months.

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Aggrieved by the said conviction and sentence passed by the learned Magistrate, the revision petitioner filed appeal as Crl.Appeal No.357 of 2007 before the Court of the Additional Sessions Judge II, Mavelikara. The appellate court dismissed the appeal confirming the conviction and sentence. Being aggrieved thereby, this revision petition is filed.

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5.Heard the learned counsel for the revision petitioner, learned counsel appearing for the 1^st respondent and the learned Public Prosecutor.

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Crl.R.P.No2799/09

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6.The specific case of the revision petitioner was that the 1^st respondent complainant obtained the blank cheques which were kept signed in the business premises of the petitioner, for use in his absence. The 1^st respondent, who is also a relative of the revision petitioner used to visit the shop of the petitioner and was entrusted with the affairs of the shop in his absence. It was his case that several cheques had been stolen from the shop and it was one such blank cheque that was misutilised by the 1^st respondent/complainant for the purpose of the instant complaint. On coming to know about the missing of cheques in 2003, he submitted stop memo in the bank and the same was entered by the bank. On receipt of Exhibit P4 notice, the revision petitioner had sent Exhibit P10 reply notice pointing out this aspect. It is contended that he also preferred a complaint before the police on receipt of the notice from the 1^st respondent, but he was advised to approach the bank.

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7.The trial court, after examining the oral and documentary evidence adduced at length, came to the conclusion that since

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Crl.R.P.No2799/09

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the accused failed to discredit the evidence of PW1 that the cheque was handed over by the accused in discharge of a debt of Rs.75,000/- and since the signature in the cheque was not disputed, the offence stood proved and the revision petitioner was liable to be convicted. The trial court had relied on Exhibit P7 complaint filed before the Human Rights Commission alleging that signed blank cheques and Rs.13,000/- had been stolen from his shop on 19.09.2003 as well as the evidence of DW2 Manager of Bank to hold that the presumption under Section 139 of the Act was not rebutted by the revision petitioner.

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8.In appeal, the appellant/revision petitioner sought leave to

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produce four documents to substantiate his case that the cheque in question was not one which was issued on 13.10.2003 as contended by DW2 in his testimony. Considering the evidence already on record, the appellate court rejected the application and held that the documents, even if permitted to be produced, would not substantiate the case of the revision petitioner. After reappreciating the evidence, the

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appellate court also came to the conclusion that the facts and circumstances of the case and the quality of the defence set up was consistent with the finding of guilt of the accused.

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9.I have given my anxious attention to the evidence adduced in the instant case. Though it was vehemently argued by the learned counsel for the revision petitioner that the refusal of the appellate court to consider the additional evidence produced to substantiate the contention of the revision petitioner was perverse and illegal, on a consideration of the evidence on record and the findings of the trial court as well as the lower appellate court, I am of the opinion that the defence set up by the revision petitioner that the cheque leaf which was left signed had been stolen from his possession is neither plausible nor believable and does not inspire confidence. In the above circumstances, the refusal on the part of the appellate court to receive further documents in evidence cannot be found fault with, since that court was of the opinion that the submission that the said documents would prove the defence case was not substantiated.

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Crl.R.P.No2799/09

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10.The courts below had taken note of the defence sought to be set up by the revision petitioner. The contention was that the loss of cheque leaves and an amount of Rs.13,000/- was noticed on 19.09.2003. However, no police complaint was filed at the relevant time. It is the admitted case of the revision petitioner himself that a complaint was preferred before the Police for the first time after being served with Exhibit P5(b) lawyer notice. This is one circumstance which had been relied upon by the courts below to find that the defence set up by the revision petitioner lacks bona fides. I find no legal infirmity in the said conclusion reached by the courts below

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11.In the above view of the matter, I am of the considered opinion that the ingredients necessary to sustain the conviction under Section 138 of the Act were proved in the instant case. The finding of guilt entered concurrently by the trial court and the lower appellate court cannot be said to be wrong, illegal or improper. In the above circumstances, the finding of guilt and the conviction recorded against the

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Crl.R.P.No2799/09

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revision petitioner by the trial court and upheld by the appellate court are confirmed.

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12.However, the learned counsel for the revision petitioner would submit that the revision petitioner is a senior citizen. He has no criminal antecedents and his imprisonment in pursuance of the sentence would not be in the interest of justice. Taking note of the above submissions of the learned counsel for the revision petitioner, the sentence of imprisonment awarded by the courts below is modified as imprisonment till rising of the court. The revision petitioner shall appear before the court below to suffer the sentence on or before 26.09.2016. Amounts, if any, paid by the revision petitioner shall be adjusted towards the fine.

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This Revision Petition is ordered accordingly.

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sd/- Anu Sivaraman, Judge

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/True Copy/

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P.A. to Judge

Chandrashekharan Nair v. Kesava Pillai and Another

Case brief

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Chandrashekharan Nair v. Kesava Pillai and Another

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