Partly allowed

Sri Unnikrishnan v. T L George

Karnataka HC25 Apr 2015CRL.RP/385/2014

Case brief

AI extract

What is this about?

In this criminal revision petition challenging a conviction for cheque dishonour under Section 138 of the N.I. Act, the High Court of Karnataka upheld the conviction but modified the sentence, reducing the fine from Rs.5,50,000/- to Rs.4,50,00/-/- while granting time for payment.

What did the court decide?

The petition is allowed in part. Conviction is confirmed. The fine is reduced to Rs.4,50,000/- to be paid within five months; default leads to six months imprisonment.

Sri Unnikrishnan Vs T L George — Cheque Dishonour | Karnataka HC (2015)

¶1

-1-

¶2

Crl.R.P.385/2014

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 25^th DAY OF APRIL, 2015 BEFORE

¶5

THE HON’BLE MR.JUSTICE A.S.PACHHAPURE

¶6

CRIMINAL REVISION PETITION NO.385/2014

¶7

BETWEEN

¶8

Unnikrishnan S/o Late Govindaezhuthatchan Aged about 45 years 91 Bn-CRPF, LDA Colony Wera Nigam, work shop Sector G Ashiyana, Kanpur Road Lucknow (U.P.) – 679 338 ... PETITIONER (BY Sri. Mohan B.K., Advocate) AND: T.L.George S/o Late O.J.Lukose Aged about 45 years Residing at No.18, Angel’s Villa Naganahalli Layout S.N.Post, Yelahanka Bangalore – 560 064 ... RESPONDENT

¶9

(By Sri.H.N.M.Prasad, Advocate)

¶10

This Crl.RP. is filed U/S.397 R/W 401 of Cr.P.C praying to set aside the judgment dated 06.05.2014 passed by the P.O., FTC-II, Bangalore in Crl.a.No.80/14 and confirming the judgment dated

¶11

-2-

¶12

Crl.R.P.385/2014

¶13

07.01.2014 passed by the XII Addl.C.M.M., Bangalore in C.C.No.5445/2010.

¶14

This petition coming on for Orders this day, the Court made the following:

¶15

O R D E R

¶16

The petitioner has challenged his conviction

¶17

and sentence for the offences punishable under Sections 138 of the Negotiable Instrument Act [hereinafter referred to as “the N.I. Act” for short], on trial held by the learned Magistrate, confirmed in the appeal by the Session Court.

¶18

The facts reveal that the parties were

¶19

acquainted with each, as they were working together in military services. The respondent is said to have lent Rs.3,42,000/- to the petitioner

¶20

as hand loan and for repayment of the dues the petitioner issued a cheque Ex.P1 dated 1.06.2009. When it was presented for encashment, it returned with an endorsement ‘insufficient funds’. The demand notice was issued. There was no compliance with the demand and therefore, he approached the

¶21

-3-

¶22

Crl.R.P.385/2014

¶23

trial Court with a complaint for the offence punishable under Section 138 of the N.I. Act.

¶24

After recording the evidence, statement of the petitioner was recorded under Section 313

¶25

of Code of Criminal Procedure. No defence evidence was lead. The trial court having heard and on appreciation of the evidence on record convicted the petitioner for the offences punishable under Section 138 of the N.I. Act and ordered him to pay fine of Rs.5,50,000/-, in default to undergo simple imprisonment for six months. The appeal was preferred by the petitioner and it came to be dismissed by confirming the conviction and sentence ordered by the court below. Aggrieved by which, the present petition is filed.

¶26

Heard the learned counsel appearing for both the parties.

¶27

Learned counsel for the petitioner

¶28

submits that there were no opportunities to the

¶29

-4-

¶30

Crl.R.P.385/2014

¶31

petitioner to produce his evidence as he was far away and was working in military and therefore he requested for remittal of the matter to the trial court. He further submits that evidence on record is not sufficient to award the conviction. Learned counsel further submits that the petitioner rebutted the presumption that arises under Section 139 of the N.I. Act and hence he requested for dismissal of this petition.

¶32

Perusal of the materials placed on

¶33

record reveals that signature on the cheque is not in dispute. The respondent had issued a notice to the petitioner much earlier to the issuance of the cheque. The said notice has been produced at Ex.P5 dated 24.11.2008. There is no dispute regarding this notice Ex.P5. After the presentation of the cheque, notice Ex.P3 was issued and it was also not replied by the petitioner. It is in the aforementioned circumstances, a complaint came to be filed by the respondent.

¶34

-5-

¶35

Crl.R.P.385/2014

¶36

The evidence of the petitioner and the respondent reveals that he was an income tax payee and he had the capacity to pay a sum of Rs.3,42,000/Notices were issued by the

¶37

respondent and there were no reply to the said notices, that apart, the petitioner also did not enter the witness box. Though it is contended that he is in military services, on perusal of the records reveal that on the date when the statement was recorded he had retired from the service. The matter was adjourned on several occasions and he has not availed the opportunity to lead his defence evidence. So question of giving further opportunity does not arise.

¶38

The aforesaid material by way of

¶39

issuance of cheque, the capacity to advance loan and his evidence would clearly reveal the material to arise presumption under Section 139 of the N.I. Act. There is no evidence by the petitioner to rebut the presumption. Therefore, I am of the

¶40

-6-

¶41

Crl.R.P.385/2014

¶42

opinion that the court below was justified in awarding conviction.

¶43

Insofar as question of sentence is

¶44

concerned, it is relevant to note that the petitioner was working as cook and cheque issued is for Rs.3,42,000/- The Trial court has awarded fine of Rs.5,50,000/- inclusive of cheque amount this appears to be higher side. The respondent is income tax payee and the petitioner is poor person who worked as cook in the military. Therefore taking into consideration all these circumstances, I am of the opinion, it is proper to reduce the fine amount by Rs.1,00,000/- and order payment of Rs.4,50,000/-.

¶45

The learned counsel for the petitioner submits that the petitioner requires time to make payment of the fine amount. Taking into consideration the submission made, I think it is just and proper to grant reasonable time to the petitioner for payment of the fine amount.

¶46

-7-

¶47

Crl.R.P.385/2014

¶48

In the circumstances, Crl.R.P is allowed-in-

¶49

part. Conviction of the petitioner for the offences punishable under Section 138 of the N.I. Act is confirmed. The sentence is modified. The petitioner is liable to pay Rs.4,50,000/- as a fine amount within a period of five months from this date, in default, he shall undergo simple imprisonment of six months. On deposit of the fine amount, Rs.4,40,000/be paid to the respondent/complainant and Rs.10,000/be

¶50

remitted to the State.

¶51

Sd/JUDGE

¶52

Sri Unnikrishnan v. T L George

Case brief

What is this about?

What did the court decide?

Sri Unnikrishnan v. T L George

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Venkatesha Vs State by Chamarajanagara

Manjunatha Land Developers Vs Lt.Col G.N. Rao (Retd)

Mr. V.A. Venkatesh Vs Mrs. M. Shobha Alexander

Mrs Nalini Raju Vs M/S Durga Steels

State of Karnataka Vs Gangadhara @ Divakara @ Padiya

State of Karnataka Vs Ahamathulla Ansari @ Ahamad