Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE20H DAY OF NOVEMBER201429TH KARTHIKA, 1936 Crl.Rev.Pet.No. 1696 of 2014 () -------------------------------- AGAINST THE JUDGMENT
IN CRL.APPEAL2452014 of APECIAL ADDL.SESSIONS JUDGE (SPL.COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE, DATED1609.2014 & AGAINST THE JUDGMENT
IN CC11042012 of J.M.F.C.-I,KOZHIKODE, DATED1803.2014 REVISION PETITIONER(S)/PETITIONER/ APPELLANT/ ACCUSED: -------------------------------------------------------------------------------------------- A.P.MOHANAN, AGED61YEARS, S/O KUTTAPPAN NAIR, KARTHIKA, KOTTULI POST, KOZHIKODE - 673 016 BY ADV. SRI.M.M.SHERIFF RESPONDENT(S)/RESPONDENT/ COMPLAINANT: -------------------------------------------------------------------- 1. SYNDICATE BANK, KOZHIKODE MAIN BRANCH REPRESNTED BY ITS CHIEF MANAGER, K.K. SREEKUMAR, 55 YEARS, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. 673 001.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.R.S. KALKURA, SC, SYNDICATE BANK R2 BY PUBLIC PROSECUTOR SRI. N. SURESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON2011-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ss K. RAMAKRISHNAN, J.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P.No.1696 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 20th day of November, 2014 ORDER
Accused in C.C.No.1104/2012 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, is the revision petitioner herein. The case was taken on file on the basis of a private complaint, filed by the first respondent bank, against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called `the Act').
2. The case of the complainant in the complaint was that, the revision petitioner stood as a surety for several loans taken by several persons including his wife and after taking all steps to realise the amount, there was an amount of 10,26,000/- due to the bank as on 20.05.2012 and in discharge of that liability, the revision petitioner as the guaranteer had undertaken to pay the amount by Crl. R. P.No.1696 of 2014 2 executing a letter and also issued Ext.P6 cheque dated 20.05.2012 in favour of the complainant bank, which when presented was dishonoured evidenced by Ext.P7 dishonour memo. The complainant issued Ext.P9 notice on 14.06.2012 evidenced by Ext.P9(a) postal receipt and the same was received by the revision petitioner on 19.06.2012 evidenced by Ext.P9(b) postal acknowledgment and he had sent Ext.P10 reply with false allegations and he had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the manager of the bank was examined as PW1 and Exts.P1 to P15, P9(a) and P9(b) were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Crl. R. P.No.1696 of 2014 3 Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, the amount was not actually due and major portion of the amount has been paid and he has been compelled to execute Ext.P8 letter and Ext.P6 cheque was obtained by force from the chamber of the manager. So it was not issued in discharge of any liability. But no defence evidence was adduced on his side to prove this fact. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him there under and sentenced him to undergo simple imprisonment for six months and also to pay a fine of 12,00,000/-, in default to undergo simple imprisonment for six months. It is further ordered that, if the fine amount is realised, the same be paid to the complainant bank as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Aggrieved by the same, revision petitioner filed Crl.Appeal Crl. R. P.No.1696 of 2014 4 No.245/2014 before the Sessions Court, Kozhikode, which was made over to Special Additional Sessions Judge (Marad cases), Kozhikode, for disposal and the Additional Sessions Judge by the impugned judgment allowed the appeal in part, confirming the order of conviction, fine and direction to pay compensation out of the fine amount, but reduced the substantive sentence of imprisonment to imprisonment till rising of the court. Dissatisfied with the same, the present revision has been filed by the revision petitioner/ accused before the court below.
4. Since the respondent had appeared through counsel, this court felt that, this can be admitted and disposed of today itself, after hearing both sides. So the revision is admitted, heard and disposed of today itself.
5. The counsel for the revision petitioner submitted that, the court below has not properly appreciated the case of the revision petitioner that, Exts.P6 cheque and P8 letter were obtained by the manager of the Crl. R. P.No.1696 of 2014 5 bank by force and it was not issued voluntarily in discharge of any liability. Further the amount mentioned is not really due and he was only a guaranteer for several loans and major portion of the loan has been recovered. So that much amount is not due. So it cannot be said that, the complainant had proved that the cheque was issued in discharge of a liability and he is entitled to get acquittal. The counsel for the revision petitioner also submitted that, the liability is only 10,26,000/-. So the imposition of fine of 12,00,000/- is excessive.
6. On the other hand, the Standing Counsel for the first respondent bank submitted that, the amount was quantified in respect of several loans, in which the revision petitioner was a guaranteer on the date on which Ext.P8 letter was given and on that day he had given a post dated cheque, which when presented was dishonoured and the present complaint was filed on that basis. No evidence was adduced on the side of the revision petitioner to prove that, Crl. R. P.No.1696 of 2014 6 the cheque and letter were obtained by force as contended by him. So the courts below were perfectly justified in convicting the revision petitioner.
7. Learned Public Prosecutor supported the submissions of the counsel for the first respondent.
8. The case of the complainant in the complaint was that, five persons namely, C.T. Jayalakshmi, who is the wife of the revision petitioner; Meera Manoj Kumar; K.S. Arun Raj; Lekha Rama Varma and N.K. Rama Varma had taken loans, as per Exts.P1 to P5 and in all these loans, the present revision petitioner joined as a guaranteer. Further after the proceedings were initiated for recovery of the amount, an amount of 10,26,000/- was due on 28.03.2012 and on that date, the amount was quantified and the revision petitioner came to the bank and undertook to pay the amount, by giving Ext.P8 letter dated 28.03.2012 and gave Ext.P6 cheque with date 20.05.2012. The revision petitioner did not dispute the giving of Ext.P8 letter and Crl. R. P.No.1696 of 2014 7 issuance of Ext.P6 cheque, but his case was that, it was obtained by force from the manager's cabin and it was not voluntarily issued. So it cannot be said that, it was issued in discharge of any liability.
9. In order to prove the case of the complainant, the manager of the complainant/bank examined as PW1 and he deposed in support of his case in the complaint. Further he had produced Exts.P1 to P5 to prove that, the loans were taken by five persons, for which the revision petitioner stood as guaranteer. Further Exts.P11 to P15 accounts will go to show that, the amount mentioned in the cheque was due, as on the date on which Ext.P8 letter was given. He had also stated that, after recovery of the amount by initiating proceedings under the `SARFEASI Act', the revision petitioner came to the bank and he had undertaken to pay the amount and accordingly Ext.P8 letter was given and on the same day, a post dated cheque dated 20.05.2012 namely Ext.P6 was also given. Crl. R. P.No.1696 of 2014 8 Since the revision petitioner had not disputed the fact that, he had executed Ext.P8 letter and issued Ext.P6 cheque, but contended that it was obtained by force, the burden is on him to prove that fact. In fact, the letter was dated 28.03.2012 and the cheque was given on the same day with date 20.05.2012, but he did not take any steps against the bank officials for obtaining the cheque and letter by force and he did not give any stop memo to the bank stating these facts.
10. The counsel for the revision petitioner submitted that, if he disputes the same and he did not execute the document, they threatened that his wife will be proceeded against and so he was compelled to give the cheque. But it may be mentioned here that, then he stood as a guaranteer for the loans of five persons and if any amount was due, he will also be equally liable to pay the amount along with the borrower. Once he had undertaken to pay the amount on behalf of others and issued the cheque, even Crl. R. P.No.1696 of 2014 9 then, the offence under Section 138 of the Act will be attracted. He did not go to the witness box or adduce any independent evidence to prove that, Ext.P8 letter and Ext.P6 cheque were obtained by force or under compulsion as claimed by him. So in the absence of such evidence, it can only be presumed that, he had undertaken the liability and issued Ext.P6 cheque in discharge of that liability. So the submission made by the counsel for the revision petitioner that the cheque was obtained by force and so it cannot be said that, it was voluntarily executed to attract the offence under Section 138 of the Act, cannot be accepted. Once it is proved by the complainant that, the amount was not paid after receipt of the notice, then the offence under Section 138 of the Act is complete. So the courts below were perfectly justified in convicting the appellant for the offence under Section138 of the Act and that the concurrent findings of the court below on facts do not call for any interference. Crl. R. P.No.1696 of 2014 10 11. As regards the sentence is concerned, the trial court sentenced him to undergo simple imprisonment for six months and also to pay a fine of 12,00,000/-, in default to undergo simple imprisonment for six months. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code. The appellate court had though confirmed the fine and default sentence with direction to pay the fine amount as compensation, the substantive sentence was reduced to imprisonment till rising of the court. In the decision reported in [2013(4) KLT350(S.C.)] Somanath Sarkar v. Utpal Basu Mallick, the Hon'ble Supreme Court has held that, the court has got power to impose double the cheque amount as fine and if the fine amount is quantified, then court can award compensation to the complainant out of the fine amount. So considering the amount involved, as loan, which was due since long time, the court below was perfectly justified in Crl. R. P.No.1696 of 2014 11 quantifying the fine as 12,00,000/-, which cannot be said to be excessive. The court below was also perfectly justified in ordering this amount, if realised to be paid to the complainant /bank as compensation under Section 357(1)(b) of the Code. If this amount is realised and paid to the complainant, then complainant is directed to adjust this amount towards the dues under the loan agreement and that must be given credit to the loan amount as provided under Section 357(5) of the Code. The counsel for the revision petitioner submitted that, after filing of the complaint he had deposited 1,00,000/- with the bank, as directed by the court below on 12.07.2013 and deposited 2,00,000/- before the court below for suspending the sentence and that will have to be given credit. If the petitioner is able to prove these two facts before the court below, then court below is directed to consider the same and if the deposit as stated by the counsel for the revision petitioner is proved, then court below is directed to give Crl. R. P.No.1696 of 2014 12 those amounts credit to the amount payable as fine and he need only to pay the balance amount. Considering the amount involved, this court feels that, eight months time can be granted to the revision petitioner to pay the amount. So the revision petitioner is granted time till 20.07.2015 to pay the amount, till then the execution of sentence is directed to be kept in abeyance. Nothing to interfere with the sentence also, as it appears to be just and proper. If any amount is deposited, as directed by the appellate court, then the lower court is directed to release the amount to the bank on making necessary applications to that purpose. With the above observation and direction, the revision is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss