Kerala High Court
Asharaf V vs Muraleedharan Master G.B on 8 November, 2024
CRL.REV.PET NO. 1144 1
& 1141 OF 2017
2024:KER:83690
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA,
1946
CRL.REV.PET NO. 1144 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 18.08.2017 IN CRA
NO.94 OF 2016 OF SESSIONS COURT,MANJERI ARISING OUT OF THE
ORDER/JUDGMENT DATED IN ST NO.1504 OF 2014 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA
REVISION PETITIONER/APPELLANT/ACCUSED:
ASHARAF V
S/O.THAYYIL UNNEEN HAJI, VENKITTATHAZHATHETHIL
HOUSE, AMBALAPPADI, MAKKARAPARAMBA-
PO,MALAPPURAM DISTRICT.
BY ADVS.
SRI.P.VENUGOPAL (1086/92)
SMT.T.J.MARIA GORETTI
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 MURALEEDHARAN MASTER G.B
S/O.V.T.SREEDHARAN THIRUMULPPADU (LATE),SREYAS,
AMBALAPPADI, MAKKARAPARAMBU-PO,MALAPPURAM
DISTRICT, PIN-676507.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, PIN-682031.
CRL.REV.PET NO. 1144 2
& 1141 OF 2017
2024:KER:83690
BY ADV SRI.U.K.DEVIDAS
OTHER PRESENT:
Smt.Maya.M.N.,P.P.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 08.11.2024, ALONG WITH
Crl.Rev.Pet.1141/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 1144 3
& 1141 OF 2017
2024:KER:83690
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA,
1946
CRL.REV.PET NO. 1141 OF 2017
AGAINST THE ORDER/JUDGMENT DATED IN CRA NO.217 OF
2015 OF SESSIONS COURT,MANJERI ARISING OUT OF THE
ORDER/JUDGMENT DATED IN ST NO.1503 OF 2014 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA
REVISION PETITIONER/S:
ASHARAF V.
S/O.THAYYIL UNNEEN HAJI, VENKITTATHAZHATHETHIL
HOUSE, AMBALAPPADI, MAKKARAPARAMBA P.O.,
MALAPPURAM DISTRICT.
BY ADVS.
SRI.P.VENUGOPAL (1086/92)
SMT.T.J.MARIA GORETTI
RESPONDENT/S:
1 MURALEEDHARAN MASTER G.B.
S/O.V.T.SREEDHARAN THIRUMULPPADU (LATE),
SREYAS, AMBALAPPADI, MAKKARAPARAMBU P.O.,
MALAPPURAM DISTRICT, PIN-676507.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN-682031.
CRL.REV.PET NO. 1144 4
& 1141 OF 2017
2024:KER:83690
BY ADV SRI.U.K.DEVIDAS
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 08.11.2024, ALONG WITH
Crl.Rev.Pet.1144/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 1144 5
& 1141 OF 2017
2024:KER:83690
C.PRATHEEP KUMAR, J
---------------------------------------
Crl.R.P.Nos.1144 & 1141 of 2017
--------------------------------------------
Dated this the 8th day of November, 2024
ORDER
These revision petitions are filed by the common appellant in Criminal Appeal No.217/2015 and 94/2016 on the file of the Sessions Court, Manjery, against the common judgment dated 18.08.2017 dismissing those appeals and thereby confirming the conviction under Section 138 of the Negotiable Instrument Act passed by the Judicial First Class Magistrate Court-II, Perinthalmanna.
2. The case of the respondent/complainant is that the revision petitioner borrowed an amount of Rs.4 lakhs from the complainant and promised to repay the same within two months. Towards the discharge of the said liability, he issued two cheques of Rs.2 lakhs each dated 30.09.2014 drawn on South Malabar Gramin Bank, Makkaraparmba branch. When the said cheques were presented for collection, they got dishonoured for want of sufficient funds in the account of the accused. When lawyer notice was issued CRL.REV.PET NO. 1144 6 & 1141 OF 2017 2024:KER:83690 intimating the dishonour of the cheques and demanding money, the accused failed to repay the amount and hence these complaints.
3. After the trial, the trial Court found the accused guilty under section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months and one month respectively and to pay a fine of Rs.2 lakhs each.
4. In appeal, the Sessions Judge, Manjeri, while sustaining the conviction, modified the sentence to undergo simple imprisonment till rising of court and to pay a fine of Rs. 2 lakhs each. There was also a direction to pay the fine amount as compensation to the complainant and a further direction that the accused shall undergo imprisonment for a period of three months each, in case the fine amount is not remitted.
5. Dissatisfied with the above judgment of the Sessions Court, the accused preferred these revision petitions raising various contentions.
6. When the complainant was examined as PW1 in both these cases, he adduced evidence in tune with the averments in the complaint. The defence taken by the CRL.REV.PET NO. 1144 7 & 1141 OF 2017 2024:KER:83690 revision petitioner is that he borrowed only sum of Rs.40,000/- in the year 2010 and at that time as security, he had issued two blank cheque leaves. According to the revision petitioner, in the year 2011, he had repaid a total sum of Rs.88,000/- including principal amount and interest to the complainant. Further according to him, at that time the complainant failed to return the blank cheques issued to him, on the ground that they were misplaced. Further according to him, in the year 2014, there arose some dispute with the complainant in connection with the disposal of an immovable property and due to that enmity, the complainant misused those blank cheques for filing these false complaints against him.
7. In this case, the accused has admitted the signature in both the cheques. He has also admitted that there was money transaction with the complainant. The only contention is that he had borrowed only 40,000/- and at that time he had issued two blank signed cheque leaves as security. He further claims that although the entire amount with interest was repaid, the cheque leaves were not returned, on the ground that they were misplaced.
8. In order to prove that the amount borrowed was only Rs.40,000/- and that the said amount was repaid to CRL.REV.PET NO. 1144 8 & 1141 OF 2017 2024:KER:83690 the complainant, there is no reliable evidence except the oral testimony of the accused as DW1. When the debtor discharges the liability of the creditor, he is entitled to get back the negotiable instrument, as provided under Section 81 of the Negotiable Instrument Act. Even if the instrument is lost or cannot be traced out, he is entitled to be indemnified against any further claim, against him. In the above circumstance, the contention of the accused that he had discharged the liability under the disputed cheques, without getting back the cheque leaves issued as security and even without getting any receipt for the above payment, cannot be believed.
9. In the above circumstances, the contention of the accused that the cheques in question were issued to the complainant as security for a previous transaction and that he does not own any amount to the complainant cannot be believed. In other words, in the light of the available evidences, the trial court as well as the appellate court are justified in holding that the impugned cheques were issued by the accused to the complainant towards the discharge of a legally enforcement debt.
10. The complainant has succeeded in proving CRL.REV.PET NO. 1144 9 & 1141 OF 2017 2024:KER:83690 that he had filed these complaints after complying all the legal formalities. As such, I do not find any valid grounds to interfere with the findings of the trial court as well as the appellate court that the accused has committed the offence punishable under Section 138 of the Negotiable Instrument Act.
11. Though the trial court sentenced the revision petitioner to undergo imprisonment of three months and one months respectively and to pay a fine of Rs.2 lakhs each, the same was modified by the Sessions Court to simple imprisonment till rising of court and to pay a fine of Rs.2 lakhs each. Since the Sessions Court awarded only the minimum sentence, I do not find any grounds to interfere with the sentence also.
12. At this stage, Sri.Venugopal, learned Counsel for the revision petitioner prayed for granting reasonable time to the revision petitioner to pay the fine amount. It is true that the prosecution has started in the year 2014 and already 10 years elapsed. He has further submitted that the revision petitioner has already paid/deposited a sum of Rs.1 lakhs on 27.10.2017 as per the direction of this Court dated 26.09.2017.
CRL.REV.PET NO. 1144 10& 1141 OF 2017 2024:KER:83690
13. In case the respondent/original complainant files application for disbursing the amount so deposited, the same shall be allowed by the learned Magistrate. The amount so deposited will be adjusted towards the fine amount due from revision petitioner under these revision petitions. Considering the entire facts, the revision petitioner is granted a further period of four months from today for remitting the balance amount before the trial court.
sd/ C.PRATHEEP KUMAR JUDGE jm/