Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH WEDNESDAY, THE 11TH DAY OF OCTOBER 2023/19TH ASWINA, 1945 CRL.REV.PET NO.53 OF 2022 AGAINST THE JUDGMENT IN ST NO.3093/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM CRA 21/2020 OF SESSIONS COURT, MANJERI DIVISION REVISION PETITIONER/APPELLANT/ACCUSED:
ABDUL NASAR, AGED 45 YEARS S/O. ABDUL AZEEZ, THEKKATH HOUSE, KIZHISSERI, KUZHIMANNA P.O., MALAPPURAM DISTRICT-673641.
BY ADVS.
P.VENUGOPAL SRUTHY.S RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
1 HIRA GOLD SOUK, KIZHISSERI, MALAPPURAM, REPRESENTED BY ITS PROPRIETOR P. ABDUL RAZAK, S/O. AHAMEDKUTTY, KIZHISSERI P.O., MALAPPURAM DISTRICT-673641.
2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
SMT.SEENA.C., PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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N. NAGARESH, J.
````````````````````````````````````````````````````````````` Crl.R.P. No.53 of 2022 ````````````````````````````````````````````````````````````` Dated this the 11th day of October, 2023 O R D E R ~ ~ ~ ~ ~ ~ The petitioner, who is accused of committing offence under Section 138 of the Negotiable Instruments Act, is before this Court in revision aggrieved by the judgment dated 07.01.2020 in ST No.3093/2015 of the Judicial First Class Magistrate's Court, Malappuram and the judgment dated 26.10.2021 of the Sessions Court, Manjeri.
2.
S.T. No.3093/2015 in the Judicial First Class Magistrate's Court, Malappuram was filed by the 1st respondent alleging that the petitioner and his relative came to the jewellery of the 1st respondent on 08.09.2014 and purchased gold ornaments worth ₹5 lakhs. The petitioner promised to pay the purchase price of the gold ornaments on
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or before 08.11.2014. The petitioner did not pay the amount as agreed. On repeated demands, the petitioner issued a cheque bearing No.000997 dated 20.03.2015 of South Malabar Gramin Bank for ₹5 lakhs.
3.
When the cheque was presented for realisation, it was returned for insufficiency of funds. The 1st respondent issued lawyer notice. Though the petitioner received notice, no reply was sent nor the money was paid. The petitioner has thereby committed offence punishable under Section 138 of the Negotiable Instruments Act.
4.
In the court below, PWs 1 to 3 were examined by the 1st respondent and Exts.P1 to P7 were marked. DW1 was examined on behalf of the petitioner.
5.
After appreciating the evidence, the learned Magistrate held that the 1st respondent has complied with all procedural formalities in filing the complaint. It was further found that the petitioner has executed and issued Ext.P1 cheque in favour of the 1st respondent in discharge of a legally enforceable debt. The petitioner has therefore
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committed the offence punishable under Section 138.
6.
Aggrieved by the judgment of the Judicial First Class Magistrate's Court, Malappuram, the petitioner filed Criminal Appeal No.21/2020 in the Sessions Court, Manjeri.
The Sessions Judge appreciated the evidence on record and came to the conclusion that Ext.P1 cheque was issued by the petitioner for a legally enforceable debt. The ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act are satisfied. The Sessions Judge, however, modified the sentence directing the petitioner to pay fine of ₹5 lakhs and in default, to undergo simple imprisonment for a period of three months under Section 138 of the Negotiable Instruments Act. Fine amount, if recovered, was directed to be paid to the 1st respondent as compensation.
7.
The counsel for the petitioner argued that the court below did not properly appreciate the factual and legal aspects of the case. There is no evidence to show that the petitioner has executed Ext.P1 cheque. The testimony of
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PW1 is highly interested. PW2 was examined for proving that the petitioner is conducting a jewellery shop. Photocopy of D&O licence was not marked and PW2 could not affirm its genuineness.
8.
The counsel for the petitioner further argued that Ext.P5 is a fabricated document. GST registration received in the year 2017 cannot have nexus with the case of the 1st respondent regarding a transaction which took place in the year 2014. Day Book ledger was not produced by the 1st respondent. There is no explanation for non-production.
The sentence imposed on the petitioner is highly excessive.
9.
I have heard the learned counsel for the petitioner and the learned Public Prosecutor representing the 2nd respondent.
10.
The case of the 1st respondent is that the petitioner went to his jewellery shop and purchased gold ornaments worth ₹5 lakhs assuring to pay the price on or before 08.11.2014. The amount was not paid as agreed. On repeated demand, the petitioner issued Ext.P1 cheque for ₹5
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lakhs. The said cheque was dishonoured.
11.
The signature of the petitioner appearing in the cheque is not denied by the petitioner. The defence of the petitioner is that the cheque was given by him to his friend Muhammed Zakariya and the said Muhammed Zakariya gave it to the 1st respondent in another transaction. The 1st respondent has misused that cheque. The petitioner asserted that the 1st respondent is not conducting any jewellery business and the 1st respondent has not sold gold to him.
12.
The execution of the cheque stands proved by the evidence adduced by PW1. When the execution is proved, the burden of proof shifts to the petitioner. The 1st respondent has adduced evidence by way of Ext.P5 that the 1st respondent is conducting jewellery business and to prove the purchase of gold ornaments by the petitioner. PW2 gave evidence that the 1st respondent is conducting jewellery business. PW3 Sales Tax Officer stated that Ext.P7 is the provisional registration certificate of GST pertaining to the
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jewellery.
13.
When the 1st respondent adduced sufficient evidence to establish execution of the cheque by the petitioner and its dishonour due to insufficiency of funds, the petitioner failed to discharge his burden of proof. I do not therefore find any reason to interfere with the orders of conviction and sentence passed by the courts below.
14.
At the same time, taking into consideration the nature of transactions and the issues involved in the case, I am inclined to grant four months time to the petitioner for making payment. It is accordingly ordered that the execution of the sentence passed by the Judicial First Class Magistrate's Court, Malappuram in ST No.3093/2015 as confirmed and modified by the Sessions Court, Manjeri in Criminal Appeal No.21/2020 shall stand deferred for a period of four months from today. The petitioner shall deposit the fine amount within the period of four months. The petitioner shall appear before the Judicial First Class Magistrate's Court, Malappuram on 11.02.2024 to undergo the sentence
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as modified by the appellate court.
Crl.R.P. is disposed of as above.
Sd/- N. NAGARESH, JUDGE aks/11.10.2023