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
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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
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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
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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
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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.
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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/
