Vinodkumar vs State Of Kerala

Dr.Kauser Edappagath, J

This Criminal Revision Petition has been filed challenging the concurrent finding of conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act (for short ‘the N.I. Act’).

The 2nd respondent filed a private complaint against the petitioner under Section 142 of the N. I. Act before the Judicial First Class Magistrate Court - II, Ottapalam (for short ‘the trial court’) as S. T. No.93/2017. The case of the 2nd respondent is that the petitioner borrowed a sum of ₹4,00,000/- (Rupees Four lakhs only) from him on 10.10.2014 and towards the discharge of the said debt, Ext.P1 cheque was issued which on presentation was dishonoured for want of sufficient funds. Even though statutory notice under Section 138(b) of the N. I. Act was issued and received by the petitioner, there was no compliance. Hence, the prosecution was lodged.

Before the trial court, on the side of the complainant, the power of attorney holder of the complainant was examined as PW1 and Exts.P1 to P6 were marked. No defence evidence was adduced. After the trial, the trial court found the petitioner guilty under Section 138 of the N. I. Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for a period of six months and to pay a compensation of ₹4,00,000/-(Rupees Four lakhs only) to the 2nd respondent, in default to suffer simple imprisonment for a period of two months. The petitioner challenged the conviction and sentence of the trial court before the Additional Sessions Court - IV, Palakkad (for short ‘the appellate court’) as Criminal Appeal No.126/2018. The appellate court dismissed the appeal. This Criminal Revision Petition has been filed challenging the judgments of the trial court as well as the appellate court.

I have heard the learned counsel for the petitioner.

To prove the case of the complainant, his power of attorney holder was examined as PW1. PW1 deposed in tune with the averments in the complaint. The learned counsel for the petitioner submitted that there is no pleading either in the complaint or in the power of attorney that PW1 had personal knowledge of the transaction. It is pertinent to note that the complaint was filed by the complainant himself and not through the power of attorney holder. Hence, the lack of pleading in the complaint that the power of attorney holder had personal knowledge is immaterial. PW1 is none other than the brother of the 2nd respondent. He testified that he knew the transaction and he had taken part in it. He also deposed that he had seen the execution of the cheque. The case of the petitioner is that the 2nd respondent was running a rent a car business and that he issued Ext.P1 cheque as a security to the rent a car business transaction he had with the 2nd respondent and misusing the said cheque, false complaint was lodged. However, no evidence has been adduced to substantiate the said claim. Even though PW1 has been cross examined in length, nothing tangible could be extracted to discredit his testimony. The 2nd respondent has succeeded in proving the transaction, execution and issuance of the cheque. No rebuttal evidence has been adduced by the petitioner to rebut the presumption available to the 2nd respondent under Sections 118 and 139 of the N. I. Act. Hence, I find no reason to interfere with the concurrent finding of conviction.

The petitioner is sentenced to undergo simple imprisonment for a period of six months apart from the compensation awarded. Considering the nature of the transaction, the entire facts and circumstances of the case, I am of the view that the substantive sentence can be reduced till the rising of the court.

For the reasons stated above, the concurrent conviction passed against the petitioner is confirmed. The substantive sentence of imprisonment is reduced till the rising of the court retaining the compensation amount. The petitioner is granted three months’ time to appear before the trial court to receive the imprisonment till the rising of the court and to deposit the compensation amount.

The Criminal Revision Petition is disposed of as above.