Allowed

T.Abdul Kader(Kutty) v. E.Ashraf

Kerala HC16 Dec 2009Crl.Rev.Pet/1122/2002

Case brief

AI extract

What is this about?

The High Court, in a criminal revision petition against conviction and sentence for cheque dishonour, allowed the petition and acquitted the accused after the parties filed a joint memo seeking and obtaining permission to compound the offence under Section 320 of the Cr.P.C.

What did the court decide?

The revision petition was allowed; conviction and sentence set aside; accused acquitted under Section 320 of Cr.P.C. First respondent permitted to withdraw deposit; bail bonds cancelled.

T.Abdul Kader(Kutty) Vs E.Ashraf — Cheque Dishonour | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931

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Crl.Rev.Pet.No. 1122 of 2002()

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-----------------------------CRA.26/1997 of SESSIONS COURT, MANJERI CC.409/1996 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM

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REVN. PETITIONER(S): APPELLANT/ACCUSED

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--------------------------------------

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T.ABDUL KADER (KUTTY), PATHATH HOUSE, KALAPARAMBU, P.O.ANGADIPURAM.

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BY ADV. SRI.K.K.MOHAMED RAVUF

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RESPONDENT(S): RESPONDENTS/COMPLAINANT

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--------------1. E.ASHRAF, S/O ABOOBACKER ILLIKKAL HOUSE, PAITHINIPARAMBU P.O. DOWN HILL, MALAPPURAM

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2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM

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ADV. SRI.BABU S. NAIR FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.Q.BARKATH ALI, J.

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Crl.R.P.No.1122 OF 2002

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Dated this the 16^th day of December, 2009

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ORDER

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Revision petitioner is the accused in C.C.No.409/1996 of Judicial Magistrate of First Class, Malappuram and appellant in Crl.Appeal No.26//1997 of Sessions Court, Manjeri. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo simple imprisonment three months and to pay a fine of Rs. 15,000/- , in default to undergo simple imprisonment for three months by the trial court. Out of the fine amount, Rs.10,000/- was ordered to be paid to the complainant as compensation. On appeal, his conviction was confirmed, but the sentence was modified to the effect that he was sentenced to undergo simple imprisonment for one month and to pay a compensation of Rs. 10,000/- to the complainant, in default, to undergo simple imprisonment for one month. The accused has now come up in revision challenging his conviction and sentence.

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The case of the first respondent/complainant as testified by

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him as PW1 before the trial court and as detailed in the complaint was

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Crl.R.P.No.1122/2002 Page numbers

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that accused borrowed Rs. 14,000/- from the complainant on January 2, 1995 promising to repay the same and to discharge that liability on January 9, 1995 the accused issued the cheque Ext.P1 for the said amount drawn on the Malappuram branch of Canara Bank, which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P6, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act.

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On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant/PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. He filed a statement contending that he has some transaction with one Ahref to whom he issued a signed blank cheque and the accused in collusion with the said

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Crl.R.P.No.1122/2002 Page numbers

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Ahref misused that cheque and created Ext.P1. DWs 1 to 3 were examined on the side of the accused.

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The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed, but sentence was modified as mentioned above. The accused has now come up in revision challenging his conviction and sentence.

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When the revision petition came up for hearing today, revision petitioner and revision first respondent filed a joint memo stating that they have compromised the matter and sought permission to compound the offence which was allowed by me. As the offence has been compounded, the revision petition has to be allowed and the accused has to be acquitted .

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In the result, as the offence has been compounded, revision petition is allowed. Conviction and sentence of the revision petitioner imposed by the trial court which is confirmed in appeal is set aside. Revision petitioner/accused is acquitted under Section 320 of Cr.P.C.

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Crl.R.P.No.1122/2002 Page numbers

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Revision first respondent/complainant is entitled to withdraw Rs. 7000/- deposited by the revision petitioner before the trial court. The bail bonds of the accused are cancelled.

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P.Q.BARKATH ALI JUDGE

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sv.

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Crl.R.P.No.1122/2002 Page numbers

T.Abdul Kader(Kutty) v. E.Ashraf

Case brief

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T.Abdul Kader(Kutty) v. E.Ashraf

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