True that during the examination under Section 313,
Cr.P.C. the revision petitioner filed a statement to the effect that Ext.P1
cheque was issued due to the threat exerted by the Police personnel. It
is also evident that the revision petitioner has not adduced any evidence
at all either oral or documentary, to substantiate the said contention.
The appellate court found that the evidence tendered by PW1 was that
on the day the revision petitioner was summoned to the police station no
cheque was executed and it was after two days therefrom that the
revision petitioner executed and delivered Ext.P1 cheque. Even after the
receipt of the statutory notice the revision petitioner had not lodged any
complaint either against the Police officials or against the first
respondent. So also, it was not noticed that he had raised any grievance
against any police officer before the higher authorities. Ext.P1 cheque is
dated 20.11.2004 and when the said cheque was presented for
encashment it was dishonoured on the ground of insufficiency of fund in
the account maintained by the revision petitioner. The said fact is
evident from Ext.P2 memo dated 16.3.2005 The said fact was intimated
as per Ext.P3. Ext.P6 would reveal that the lawyer notice was served on
the petitioner in 2005 itself. Even after receiving the lawyer notice the
revision petitioner did not initiate any legal action either against the
Police officials or against the first respondent. It is to be noted that
during the trial the revision petitioner would admit the delivery of Ext.P1
cheque and the signature and writing thereon. In other words, the
revision petitioner had not disputed the execution of Ext.P1 cheque
before the trial court. In such circumstances, the oral testimony of PW1
was taken as sufficient by the courts below to prove the factum of
execution. The evidence of PW1 with Exts.P2 to P6, as discussed by the
courts below, would reveal that pursuant to the presentation of the
cheque in question for encashment it was dishonoured on the ground of
insufficiency of fund in the account maintained by the revision petitioner
and thereafter, the procedures mandatorily to be followed in view of with
the provisions under the Negotiable Instruments Act, were scrupulously
followed by the first respondent prior to the filing of the complaint. It is
taking into account all such aspects that the courts below arrived at the
finding that the first respondent succeeded in establishing that the
revision petitioner has committed the offence under Section 138 of N.I.
Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 24TH DAY OF FEBRUARY 2015
Crl.Rev.Pet.No. 232 of 2015
ARUNKUMAR, Vs SATHYAKUMAR
This revision petition is directed against the judgment in
Crl.A.No.434 of 2012 dated 16.10.2014 of the Court of Additional
Sessions Judge-I, Thrissur whereby and whereunder the conviction
entered against the revision petitioner for the offence under Section 138
of the Negotiable Instruments Act in C.C.No.1234 of 2008 of the Court
of Judicial First Class Magistrate-I, Thrissur was confirmed and the
sentence imposed therefor was modified. The case of the first
respondent/complainant was that Ext.P1 cheque issued by the revision
petitioner in discharge of a legally enforceable debt on its presentation
for encashment got dishonoured due to paucity of fund in the account
maintained by the revision petitioner. Though the first
respondent/complainant issued statutory notice intimating the revision
petitioner regarding the factum of dishonour of the cheque and calling
upon him to pay the amount due the revision petitioner did not effect
payment of the amount covered by the cheque in question. It is in the
said circumstances that the complaint that ultimately culminated in the
registration of the aforesaid Calendar Case was filed. To bring home the
charge the complainant got himself examined as PW1 and got marked
Exts.P1 to P6. The revision petitioner who was examined under Section
313, Cr.P.C. after the closure of the evidence of the complainant denied
all the incriminating circumstances put to him and at the same time, filed
a statement to the effect that the cheque in question was obtained by
the first respondent from the Police Station when he was summoned to
the Police Station in connection with a complaint filed by the first
respondent. After appreciating the evidence the trial court found that
the first respondent has succeeded in establishing the factum of
commission of offence under Section 138 of the Negotiable Instruments
Act by the revision petitioner and consequently, convicted him
thereunder and sentenced to undergo simple imprisonment for a period
of one year and to pay a fine of ` 1,11,000/-. It was also directed that
out of the said amount of fine ` 1,06,000/- shall be given to the
complainant as compensation under Section 357(1) Cr.P.C. and in default
of payment of fine the revision petitioner was directed to undergo simple
imprisonment for a further period of six months. The revision petitioner
took up the matter in appeal as Crl.A.No.484 of 2012. The Court of
Additional Sessions Judge-I, Thrissur, the appellate court found the
contentions raised by the revision petitioner to mount challenge against
the conviction entered against him as meritless and consequently,
confirmed the conviction. However, the appellate court interfered with
the substantive sentence imposed against the revision petitioner and set
aside the same. For the conviction under Section 138 of the N.I. Act the
revision petitioner was sentenced to pay a fine of ` 1,99,810/- and in
default of payment of fine he was directed to undergo simple
imprisonment for a further period of six months. The amount of fine on
realisation was directed to be paid as compensation to the complainant
under Section 357(1) of Cr.P.C. The captioned revision petition has been
filed in the said circumstances.
2. I have heard the learned counsel for the petitioner and
also the learned Public Prosecutor.
3. As noticed hereinbefore, the courts below entered
conviction against the revision petitioner under Section 138 of the N.I.
Act concurrently. In such circumstances, there cannot be any doubt with
respect to the position that an interference in invocation of the revisional
jurisdiction is invited in case the revision petitioner brings out a case of
utter perverse appreciation of evidence or succeeds in showing that the
conclusions and findings of the courts below are totally against the
weight of evidence. Such interference is also permissible in case an error
in law is also brought out. In this case, the first respondent/complainant
deposed while being examined as PW1 perfectly in tune with his
allegations in the complaint. The case of the first respondent is that
Ext.P1 cheque was issued in order to discharge a personal liability of the
revision petitioner. True that during the examination under Section 313,
Cr.P.C. the revision petitioner filed a statement to the effect that Ext.P1
cheque was issued due to the threat exerted by the Police personnel. It
is also evident that the revision petitioner has not adduced any evidence
at all either oral or documentary, to substantiate the said contention.
The appellate court found that the evidence tendered by PW1 was that
on the day the revision petitioner was summoned to the police station no
cheque was executed and it was after two days therefrom that the
revision petitioner executed and delivered Ext.P1 cheque. Even after the
receipt of the statutory notice the revision petitioner had not lodged any
complaint either against the Police officials or against the first
respondent. So also, it was not noticed that he had raised any grievance
against any police officer before the higher authorities. Ext.P1 cheque is
dated 20.11.2004 and when the said cheque was presented for
encashment it was dishonoured on the ground of insufficiency of fund in
the account maintained by the revision petitioner. The said fact is
evident from Ext.P2 memo dated 16.3.2005 The said fact was intimated
as per Ext.P3. Ext.P6 would reveal that the lawyer notice was served on
the petitioner in 2005 itself. Even after receiving the lawyer notice the
revision petitioner did not initiate any legal action either against the
Police officials or against the first respondent. It is to be noted that
during the trial the revision petitioner would admit the delivery of Ext.P1
cheque and the signature and writing thereon. In other words, the
revision petitioner had not disputed the execution of Ext.P1 cheque
before the trial court. In such circumstances, the oral testimony of PW1
was taken as sufficient by the courts below to prove the factum of
execution. The evidence of PW1 with Exts.P2 to P6, as discussed by the
courts below, would reveal that pursuant to the presentation of the
cheque in question for encashment it was dishonoured on the ground of
insufficiency of fund in the account maintained by the revision petitioner
and thereafter, the procedures mandatorily to be followed in view of with
the provisions under the Negotiable Instruments Act, were scrupulously
followed by the first respondent prior to the filing of the complaint. It is
taking into account all such aspects that the courts below arrived at the
finding that the first respondent succeeded in establishing that the
revision petitioner has committed the offence under Section 138 of N.I.
Act. The petitioner could not bring out any ground so as to compel this
Court to exercise the revisional jurisdiction. In the said circumstances, I
do not find any legal infirmity or illegality warranting interferences with
the conviction concurrently entered against the revision petitioner by the
courts below. Hence, it is confirmed.
4. For the conviction under Section 138 of the N.I. Act the
trial court sentenced the petitioner as aforesaid. The substantive
sentence imposed by the trial court directing the revision petitioner to
undergo simple imprisonment for one year was set aside by the appellate
court. There cannot be any doubt with respect to the position that a
sentence must follow a conviction. In such circumstances and taking into
account the fact that the amount covered by the cheque in question was
` 1,06,000/- and the cheque in question was issued on 20.11.2014 the
revision petitioner was sentenced to pay a fine of ` 1,99,810/- and it was
ordered to be paid to the first respondent/complainant under Section 357
(1), Cr.P.C. Though paragraph 19 of the judgment of the appellate court
would reveal that the said figure was arrived at after calculating the
interest at the rate of 9% on the amount covered by the cheque in
question on considering all the aspects including the setting aside of the
substantive sentence to undergo imprisonment for one year I do not find
any reason to interfere with the sentence of fine imposed by the
appellate court. In the result, the sentence imposed on the revision
petitioner by the appellate court in substitution of the sentence imposed
by the trial court is also confirmed. When this Court was about to dismiss
the revision petition without any qualification, the learned counsel for the
revision petitioner sought some time to the revision petitioner to pay the
fine. In the interest of justice, the learned Magistrate is directed to keep
in abeyance the execution of the sentence for a period of eight months
so as to enable the revision petitioner to pay the amount within the
above stipulated period. In case of failure on the part of the revision
petitioner to pay the amount within the above stipulated period the
learned Magistrate shall take appropriate steps for the execution of the
sentence, forthwith. Needless to say that if any amount has already
deposited by the revision petitioner it shall be given credit towards the
fine amount.
Subject to the above, this revision petition is dismissed.
Sd/-
C.T.RAVIKUMAR
Judge
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