At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
For the Appearing Parties: Nidhi Balachandran, Sabu George, Ajith Murali, Advocates.
1. The revision petitioners are the first and the second accused in the case S.T.No.38/2018 on the file of the Court of the Judicial First Class Magistrate-VIII, Kozhikode.
2. The first petitioner is a proprietorship and the second petitioner is the proprietor of it.
3. The trial court found the second petitioner, who is the second accused in the case, guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to undergo imprisonment till the rising of the court and also to pay a fine of Rs.2,04,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. The trial court also directed that, if the fine amount was realised, it shall be given to the complainant as compensation.
4. The petitioners preferred Crl.A.No.286/2018 before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against the second accused by the trial court. The learned Additional Sessions Judge confirmed the conviction as well as the sentence and dismissed the appeal.
5. Aggrieved by the concurrent findings of guilty, conviction and sentence passed against the second petitioner by the courts below, this revision petition is filed by the accused in the case.
6. Heard learned counsel for the revision petitioners.
7. The case of the complainant is as follows: The complainant is conducting business in stainless steel rods and other materials. On 02.02.2016, the accused purchased materials from the complainant for Rs.2,03,490/-. In order to discharge that debt, the second accused issued a cheque dated 02.02.2016 for that amount in favour of the complainant. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. The second accused did not send any reply. He did not pay the amount of the cheque.
8. During the trial of the case, the proprietor of the complainant firm got himself examined as PW1 and Exts.P1 to P13 series documents were marked on the side of the complainant. The second accused got himself examined as DW1.
9. When examined as PW1, the complainant gave evidence regarding the transaction with the accused. He also gave evidence that the second accused issued Ext.P2 cheque dated 02.02.2016 for Rs.2,03,490/- towards the price of the materials purchased by the accused from the complainant firm.
10. The plea of the second accused was that he had purchased materials worth Rs.1,26,000/- from the complainant firm in the month of July, 2015 and at that time, he had issued a signed blank cheque as security. According to him, he paid Rs.26,000/- to the complainant but the balance amount was not paid as the materials were defective. It is also the plea of the second accused that he had no other transaction with the complainant and that the complainant has misused the aforesaid cheque which was given by him as security.
11. When examined as DW1, the second accused gave evidence to the above effect.
12. The complainant has admitted that the accused had purchased materials worth Rs.1,26,000/- in the month of July, 2015. However, PW1 would say that the accused had paid the price of the materials then purchased.
13. The complainant produced and proved Ext.P1 invoice, Ext.P12 value added tax return filed for the month of March, 2016 and Ext.P13 ledger account to prove the transaction with the accused that took place on 02.02.2016.
14. The plea of the accused regarding the possession of his cheque with the complainant and the evidence adduced by the second accused as DW1 in that regard cannot be accepted as probable and reliable in view of the overwhelming evidence adduced by the complainant to prove the transaction that took place on 02.02.2016.
15. The complainant had sent Ext.P4 lawyer notice to the accused demanding payment of the amount of the cheque. The second accused did not send any reply to the statutory notice sent to him by the complainant. If he had not purchased any materials from the complainant on 02.02.2016 and if he did not owe any amount to the complainant in such transaction and if the complainant had misused the signed blank cheque which was given by him in an earlier transaction, the second accused would have definitely sent a reply to the statutory notice. He would not have remained silent and inactive on receiving the statutory notice from the complainant. The very fact that the notice sent by the complainant to the second accused did not evoke any response from him is a crucial circumstance which would indicate that the version of the complainant is true.
16. The courts below have properly analysed the evidence in the case and come to the right conclusion. I find no illegality, impropriety or perversity in the appreciation of evidence by the courts below except the fact that the trial court has used the expressions 'plaintiff' and 'defendant' in some places in its judgment instead of the expressions 'complainant' and 'accused'. Conviction of the second accused for the offence under Section 138 of the Act is only to be confirmed.
17. The trial court has shown maxim
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um leniency in awarding sentence on the second accused. There is no sufficient ground to interfere with the sentence also. 18. In the result, the revision petition is dismissed. Conviction of the second petitioner/second accused in the case for the offence under Section 138 of the Act and the sentence imposed on him by the trial court are confirmed. The direction given by the trial court regarding payment of compensation to the complainant is also confirmed. However, the second petitioner/second accused is granted a period of three months from today to remit the amount of fine in the trial court.