Kerala High Court
Mauvancheri Ashraf vs Ammad P on 21 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
CRL.REV.PET NO. 1107 OF 2019
AGAINST THE JUDGMENT IN CRA 239/2017 DATED 13.08.2019 ON THE FILE OF ADDITIONAL
DISTRICT & SESSIONS COURT, VADAKARA IN ST 10/2016 (C.C. NO.983/2015) DATED
25.05.2017 ON THE FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, VADAKARA
REVISION PETITIONER/APPELLANT/ACCUSED:
MAUVANCHERI ASHRAF,
AGED 38 YEARS
S/O.ABDULLA, BUSINESS MANGATTUMMAL HOUSE, P.O.CHERAPURAM,
KAKKATTIL VIA., VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADV ZUBAIR PULIKKOOL
RESPONDENTS/RESPONDENT/COMPLAINANT & STATE:
1 AMMAD P.,
AGED 65 YEARS
S/O.POCKER, PULLAROT HOUSE, RESIDING AT MAUVANCHERI THAZHAKUNI
P.O., CHERAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 507.
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY ADV SRI.P.VENUGOPAL (1086/92)
ADV.SMT SEENA C.-GP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Rev.Pet. No.1107 of 2019
2
ORDER
Dated this the 21st day of December, 2023
Accused in S.T. No.10/2016 before the Judicial Magistrate
of the First Class-II, Vadakara, is the revision petitioner. He was
convicted and sentenced by the learned Magistrate for an
offence under Section 138 of the Negotiable Instruments Act,
1881. The sentence imposed was simple imprisonment for a
period of one and half years and pay a fine of Rs.17 lakhs. The
fine, if realised was ordered to be paid as compensation to the
1st respondent/complainant. The appeal filed by the petitioner
ended in dismissal. Aggrieved thereby, the petitioner filed this
revision petition.
2. Heard the learned counsel for the petitioner, the
learned counsel for the 1st respondent and the learned Public
Prosecutor.
3. The 1st respondent filed a complaint with the
following allegations: The petitioner is a business man. On his
request, an amount of Rs.12 lakhs was advanced by the 1 st
respondent to him for investing in his business. Understanding
between the parties, was that profit at the rate of Rs.1,500/-
per Rs.1,00,000/- would be paid every month to the 1 st
respondent. Although, the profit was paid for a few months, the
petitioner failed to continue payment and hence, the 1 st
respondent insisted to return the money. Accordingly, the
petitioner had issued Ext.P1 cheque drawn on the HDFC Bank
on 08.10.2012 to effect repayment. The further allegation is
that when the cheque was presented for encashment, it was
returned unpaid for want of sufficient funds with the account of
the petitioner and despite issuance of the demand notice, he
did not make payment.
4. On the aforesaid accusation a trial was held. Oral
evidence of PW1 and PW2 and documentary evidence, Exts.P1
to P14 were let in before the learned Magistrate. On
appreciating that evidence, the learned Magistrate found the
petitioner guilty and convicted.
5. Before the appellate court the petitioner has raised
contentions that the evidence tendered by the 1 st respondent
was insufficient to prove execution of Ext.P1 and also payment
of money by him to the petitioner. It was contended that
despite denial of execution and issuance of the cheque by the
petitioner, the trial court did not insist on the 1 st respondent to
prove execution of the cheque. As regards inconsistency
between the contents of Ext.P3 notice, the complaint and the
oral testimony of PW1 also the petitioner had raised
contentions. The Appellate Court considered the above
contentions and after a detailed re-appreciation of evidence,
negatived the said contentions.
6. The learned counsel for the petitioner would submit
that the pleadings that are elementary in a complaint alleging
an offence under Section 138 of the N.I.Act as enumerated by a
Division Bench of this Court in Basheer K. v. C.K.Usman
Koya and Another [2021 (2) KHC 432] were not pleaded in
this case and for that reason itself his prosecution is illegal. In
that decision, this Court held that a complaint filed under
Section 138 of the N.I. Act should contain factual allegations
regarding the following five ingredients, (i) the cheque drawn in
a valid account by the holder, (ii) its presentation within six
months or validity period; whichever is earlier, (iii) dishonour,
(iv) demand by the payee or holder in due course, (v) which
demand is within 30 days of dishonour. It is also held that all
these ingredients are imbibed in Section 138 of the Act itself.
The only fact which has to be proved in addition to attract the
offence under Section 138 is that in spite of the demand of
notice, the drawer of the cheque failed to make payment within
15 days from the date of receipt of the demand.
7. What pleaded in the complaint are that in order to
make repayment of Rs.12 lakhs advanced by the 1 st respondent
the cheque was issued and when presented the cheque, it was
returned unclaimed. The other ingredients that the demand
notice was issued and the amount was not paid are also stated
in the complaint. It is true that it is not stated in specific words
that the cheque was drawn in a valid account maintained by
the petitioner. Similarly, it is not specifically stated that the
cheque was presented within six months of the date of its
issue. Also, it was not specified that the notice was within 30
days of receipt of the dishonour memo. But all the dates
namely date of issuance of the cheque, date of its dishonour,
date of issuance of the demand notice and so on and so forth
are stated in the complaint. All the documents evidencing the
aforesaid facts were produced along with the complaint. When,
those facts are stated in the complaint itself, failure to specify
that the cheque was drawn in a valid account, it was presented
within six months and the notice was issued within 30 days,
etc. are not infractions or lack of pleadings. What is intended
by laying down the said parameters is only that the complaint
should reflect all such data. When the documents evidencing
such facts are produced along with the complaint, the
complaint has to be read along with such documents. The
question is whether all the relevant facts to constitute the
aforementioned requirements reflect in the complaint or not.
The complaint in this case certainly contain all such facts. The
contention of the learned counsel for the petitioner in that
regard is therefore without any merit.
8. The learned counsel for the petitioner further
contended that the facts stated in the complaint and evidence
are contradictory. While no details about the transaction were
stated in the notice in complaint it was stated that the money
was invested in the business of the petitioner. It was improved
in the evidence that the money was lent. Pointing out those
inconsistency, it is contended by the learned counsel for the
petitioner that the very case of the 1 st respondent is doubtful
and therefore it cannot be said that Ext.P1 is supported by
consideration. It is also contended that execution of Ext.P1 is
not admitted by the petitioner and evidence tendered by the 1 st
respondent is not sufficient to prove its execution. Therefore,
no presumption under Section 139 of the N.I. Act can be drawn
in respect of Ext.P1. In that context, it is contended, the
inconsistency pointed out above are enough to reject the case
of the 1st respondent.
9. Of course, during examination under Section 313 of
the Code, the petitioner stated that he did not issue such a
cheque to the 1st respondent. But he did not specifically deny
the signature of Ext.P1. PW1 deposed in court that Ext.P1
cheque was executed and signed before him. When, during the
cross examination, it was suggested to him that the petitioner
did not execute or handover such a cheque, he categorically
denied the same. Having gone through the evidence of PW1, I
find no reason to disbelieve him in respect of his assertion
regarding execution of Ext.P1. In the said circumstances,
findings of courts below that execution of Ext.P1 has been duly
proved, cannot be held to be faulty. The said concurrent finding
is not therefore liable to be interfered with by this Court in
exercise of the revisional jurisdiction under Section 401 of the
Code.
10. As regards the statutory requirements, there is no
serious contest on the part of the petitioner. Since, execution of
Ext.P1 is proved by the 1st respondent presumption as allowed
under Section 139 of the N.I. Act is liable to be drawn. The 1 st
respondent has produced copies of the statements of account
relating to his Bank. The contention of the 1 st respondent that
he paid the money through cheques is substantiated by that
evidence also. The petitioner, however, did not adduce
evidence which is sufficient to rebut the presumption.
11. In the light of the aforesaid findings, the challenge
to the concurrent findings that led to the conviction of the
petitioner are unassailable. As regards the sentence, the
learned counsel for the petitioner would submit that when
there is already a decree as evidenced by Ext.P6 allowing the
1st respondent to realise the amount due under Ext.P1 along
with interest, the courts below ought not to have ordered an
amount of Rs.17 lakhs as compensation. In this regard, the
learned counsel for the petitioner placed reliance on Vijayan
R. v. Baby and Another [2012 (1) SCC 260]. The Apex
Court has observed in the said decision that in a proceeding
under Section 138 of the Negotiable Instruments Act,
compensation shall ordinarily be ordered in the event of
conviction and that will enable avoiding parallel proceedings,
namely, the prosecution under Section 138 of the N.I. Act and
the civil suit for realisation of the amount due under the very
same cheque. It was further observed that the compensation
shall ordinarily include interest at the rate of 9% per annum
subject to maximum of double the amount of the cheque.
Those observations do not prohibit the payee from filing a
complaint as well as a suit. Therefore, already there is a decree
in favour of the 1st respondent is not a reason to interfere with
the order directing payment of compensation. However, the
submission of the learned counsel concerning the substantive
sentence, that it is exorbitant considering the nature of the
offence has force. The courts below awarded a substantive
sentence of imprisonment for a period of 18 months. It is
established that the transaction was in connection with the
business of the petitioner. Imposing imprisonment for such a
period, while considering the amount involved and also the
nature of transaction, is unwarranted.
In the circumstances, the sentence is liable to be
interfered with. Accordingly, this revision petition is allowed in
part. The conviction is confirmed. The sentence is modified.
The petitioner is sentenced to undergo imprisonment till the
rising of the court and to pay fine of Rs.17 lakhs. In the event
of default of payment of the amount of fine the petitioner shall
undergo simple imprisonment for a period of four months. If
the fine is realised, the same shall be paid to the 1 st respondent
as compensation under Section 357(1)(b) of the Code.
Sd/-
P.G.AJITHKUMAR
JUDGE
SMF
