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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SOPHY THOMAS, J.
Mathew Kunju Mathew, S/o. Kunju Mathew - Appellant
Versus
K.V. Kuriakose, S/o. Varghese and Anr. – Respondents
Crl. Rev. Pet No. 1799 Of 2013, Crl. Rev. Pet No. 1816 Of 2013, Crl. Rev. Pet No. 1962 Of 2013
Decided On : 06-12-2023
Negotiable Instruments Act - Section 138 - Conviction under Section 138 - The court discussed the relevance of the judgment in O.S.No.174 of 2009, which found that the cheques in question were not supported by valid consideration, and its impact on the criminal proceedings. The court referred to Sections 43 and 11 of the Indian Evidence Act and cited precedents to establish that the judgment of the civil court became relevant under Section 43 of the Indian Evidence Act, and the conviction and sentence passed by the courts below could not sustain in the eye of law.
Fact of the Case:
The 1st respondent/complainant alleged that the revision petitioner borrowed money and issued cheques towards discharge of the debt. The cheques were dishonoured, leading to criminal complaints under Section 138 of the NI Act. The revision petitioner was convicted and sentenced, which was upheld by the appellate court. The revision petitioner challenged the conviction and sentence.
Finding of the Court:
The judgment in O.S.No.174 of 2009, which found that the cheques were not supported by valid consideration, was found to be relevant and binding on the criminal court. The court held that the conviction and sentence passed by the courts below could not sustain in the eye of law, and the revision petitioner was acquitted in all the cases.
Issues: Relevance and impact of the judgment in O.S.No.174 of 2009 on the criminal proceedings under Section 138 of the NI Act.
Ratio Decidendi: The judgment of the civil court became relevant under Section 43 of the Indian Evidence Act, and the conviction and sentence passed by the courts below could not sustain in the eye of law.
Final Decision: The revision petitions were allowed, setting aside the conviction and sentence of the revision petitioner under Section 138 of the NI Act. The revision petitioner was found not guilty of the offence and acquitted in all the cases.
ORDER :
These revisions are at the instance of the accused in S.T.No.2211 of 2006, S.T.No.2214 of 2006 and S.T.No.2206 of 2006 on the file of Judicial First Class Magistrate Court No.IV, Kottayam, assailing the common judgment in Crl.Appeal Nos.558 of 2010, 559 of 2010 and 557 of 2010 on the file of Additional Sessions Court, Kottayam, which upheld his conviction under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’), though modified and reduced the sentence to certain extent.
2. S.T.No.2211 of 2006, S.T.No.2214 of 2006 and S.T.No.2206 of 2006 were filed by the 1st respondent/ complainant against the revision petitioner alleging an offence punishable under Section 138 of the NI Act. The case of the 1st respondent/complainant was that the revision petitioner borrowed from him Rs.10,00,000/- each on three occasions i.e., on 20.03.2003, 16.04.2003 and 20.11.2003, for the working capital requirements of his contract works. Towards discharge of that debt, he issued Exts.P1 cheque dated 05.04.2006 for Rs.10,00,000/-, Exts.P4 cheque dated 12.04.2006 for Rs.10,00,000/- and Ext.P7 cheque dated 18.04.2006 for Rs.12,00,000/-, assuring that he would get the cash on presenting the cheques before the Bank. Though the 1st respondent/ complainant presented the cheques before the Bank for encashment, the cheques were returned dishonoured for the reasons account was closed and insufficiency of funds. He sent statutory notice to the revision petitioner, intimating dishonour of the cheques and demanding the cheque amounts. But, he did not repay the amount, and hence he filed the above criminal complaints under Section 138 of the NI Act.
3. On appearance of the revision petitioner before the trial court, particulars of offence was read over and explained in all the three cases, to which he pleaded not guilty and claimed to be tried. Since the parties were same and the transactions were interconnected, the trial court tried those three cases jointly. PWs 1 to 3 were examined and Exts.P1 to P26 were marked from the side of the 1st respondent/complainant. On closure of the evidence of the complainant, the revision petitioner/accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating materials brought on record, and Exts.D1 to D4 were marked from his side.
4. On an anxious consideration of the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 138 of the NI Act in all the three cases, and he was convicted and sentenced to undergo simple imprisonment for one month in all the three cases and compensation of Rs.10,00,000/- in S.T.Nos.2206 of 2006 and 2211 of 2006, and Rs.12,00,000/- in S.T.No.2214 of 2006, to be paid to the complainant under Section 357(3) of Cr.P.C., with a default sentence of simple imprisonment for a further period of two months, in each case.
5. Aggrieved by the conviction and sentence, in all the three cases, the revision petitioner preferred Crl.Appeal Nos.558 of 2010, 559 of 2010 and 557 of 2010. The appellate court, on re-appreciation of the facts and evidence, found no reason to interfere with the conviction of the revision petitioner under Section 138 of the NI Act, and hence his conviction was upheld. But the sentence was modified and reduced to imprisonment till rising of court without disturbing the compensation part, though the default sentence was modified and increased to simple imprisonment for three months in all the three cases. Impugning the common judgment of the appellate court, the revision petitioner preferred the above revision petitions.
6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence of the revision petitioner under Section 138 of the NI Act imposed by the appellate court, as per the impugned common judgment.
7. Heard learned counsel for the revision petitioner and learned for the 1st respondent/com
SupremeToday
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