Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE18H DAY OF DECEMBER201427TH AGRAHAYANA, 1936 Crl.Rev.Pet.No. 2189 of 2014 () ------------------------------- AGAINST THE JUDGMENT
IN CRA852012 of ADDL.DISTRICT & SESSIONS COURT, NORTH PARAVOOR DATED0910-2014 AGAINST THE JUDGMENT
IN ST1682010 of JUDICIAL FIRST CLASS MAGISTRATE- III, ALUVA DATED3112-2011 ---------------------------------------------- REVISION PETITIONER/APPELLANT/ACCUSED : ---------------------------------------------------------------------- ALTHAF.M.M. AGED35YEARS S/O.ANTONY, MALLESSERY HOUSE, PUKKATTUPADY PUKKATTUPADY P O, ALUVA BY ADVS.SRI.K.S.ARUNKUMAR SMT.M.N.MAYA SMT.RESMI THOMAS RESPONDENTS/RESPONDENTS/COMPLAINANT : -------------------------------------------------------------------------- 1. MUTHOOT VEHICLE AND ASSET FINANCE LTD., (FORMERLY KNOWN AS MUTHOOT LEASING & FINANCE LTD) ALUVA BRANCH, MARKET JN ALUVA, REP BY ITS MANAGER MR PAUL K F, AGED40YEAR, S/O.K T FRANCIS, KATTIPARAMBIL HOUSE KOTTECANAL ROAD, KOCHI-18 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM R2 BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON1812-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VS K.RAMAKRISHNAN, J.
------------------------------ Crl.R.P.No.2189 of 2014 ---------------------------------- Dated this the 18th day of December, 2014 ORDER
The accused in ST.No.168/2010 on the file of the Judicial First Class Magistrate-III, Aluva, is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent company, under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). The case of the complainant in the complaint was that, the revision petitioner availed a loan for purchasing a vehicle, and committed default in payment of the amount, and in discharge of that liability, he had issued Ext.P6 cheque in the name of the company, which when presented was dishonoured for the reason 'funds insufficient', and the same was intimated to the complainant vide Ext.P7 and P8 memos by the drawee Crl.R.P.2189of 2014 2 bank and the collecting bank respectively. The complainant issued Ext.P9 notice vide Ext.P10 Postal Receipt, and the same was received by the revision petitioner evidenced by Ext.P11 Postal Acknowledgment. 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 authorised representative of the complainant concerned, authorised by Ext.P4 resolution was examined as PW1 and Exts.P1 to P11 were marked on their side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313(1)(b) of Code of Criminal Procedure, and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had Crl.R.P.2189of 2014 3 further said that, a blank signed cheque given as the security at the time of availing loan was misused and the present complaint was filed. No evidence was adduced on the side of the revision petitioner in defence to prove his case. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act, and convicted him thereunder, and sentenced him to pay a fine of Rs.2,49,000/-, in default to undergo simple imprisonment for three months, and 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 Code of Criminal Procedure.
4. Aggrieved by the same, he filed Crl.A.No.85/2012 before the Sessions Court, Ernakulam, which was made over to the Additional Sessions Court-II, North Parur. The learned Addl.Sessions Judge by the impugned judgment dismissed the appeal, confirming the order of Crl.R.P.2189of 2014 4 conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner accused before the court below.
5. Considering the scope of enquiry and the nature of contentions raised, this court felt that the revision can be disposed of at the adimission stage itself, after hearing the counsel for the revision petitioner and the Public Prosecutor appearing for the second respondent dispensing with notice to the first respondent.
6. The counsel for the revision petitioner submitted that, the evidence on PW1 is not sufficient to prove the execution of the cheque. Further, the evidence will go to show that the blank signed cheque given was misused and the present complaint was filed. Further the vehicle met with an accident, and that was the reason for non payment of the amount and so offence under Section 138 is attracted. The Crl.R.P.2189of 2014 5 courts below were not justified in convicting him for the offence alleged.
7. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below on this aspect.
8. The case of the complainant in the complaint was that, the revision petitioner availed a loan for purchasing a Ford Icon car, and committed default in payment of the amount and there was an amount of Rs.2,49,000/- due, and in discharge of that liability, Ext.P6 cheque was issued. The case of the revision petitioner was that, the blank signed cheque given at the time of availing the loan was misused, and the present complaint was filed. His further case was that, since the vehicle met with an accident, he could not pay the amount, and there was no willful default on his part in discharge of that liability. In order to prove the case of the complainant, PW1 was examined, and he deposed in the support of the case Crl.R.P.2189of 2014 6 in the complaint. Though he was cross-examined at length, nothing was brought out to discredit his evidence on this aspect. Further he denied the suggestion that blank signed cheque given at the time of availing the loan as security has misused. Further the revision petitioner had no case that he had discharge the loan and no amount was due from him. He has not produced any document to prove that he had paid any installment as well. Further he did not send any reply to the notice issued, when the dishonour of the cheque was intimated to the revision petitioner by the complainant. So all these things will go to show that, the revision petitioner had not questioned the act of the complainant as he was convinced that the case of the complainant is true. In the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption available under Section 139 of the Act, then court shall presume that the cheque was issued in discharge Crl.R.P.2189of 2014 7 of a legally enforceable debt. So under the circumstances, the courts below were perfectly justified in believing the case of the complainant, and relying on the presumptions available under Section 139 and 118 of the Act, rightly convicted him for the offence under Section 138 of the Act, and the concurrent findings of the courts below on this aspect do not call for any interference.
9. As regards the sentence is concerned, courts below had only sentenced him to pay fine, that too confining to the the cheque amount alone. So maximum leniency has been shown by the courts below in imposing the sentence as well, which cannot be said to be excessive warranting interference at the hands of this court.
10. When this court was about to dispose of the revision, the counsel for the revision petitioner prayed for six months time for payment of the amount. Considering the amount involved, this court Crl.R.P.2189of 2014 8 feels that the prayer is reasonable. So revision petitioner is granted time till 18/06/2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. With the above directions and observations the revision petition is dismissed. Office is directed to communicate this order to the concerned courts immediately. Sd/- K.RAMAKRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE VS Crl.R.P.2189of 2014 9