Partly allowed

M.S.Sunilkumar v. State of Kerala

Kerala HC14 Dec 2009Crl.Rev.Pet/1511/2001

Case brief

AI extract

What is this about?

This criminal revision petition challenged conviction and sentence under Section 138 of the Negotiable Instruments Act. The High Court confirmed the conviction but modified the sentence to imprisonment till the rising of the court with a fine of Rs. 30,000.

What did the court decide?

Appellant convicted under Section 138 NI Act; sentence modified to imprisonment till rising of court and fine of Rs. 30,000. Bail cancelled. Surrender directed by 7 January 2010.

M.S.Sunilkumar Vs State of Kerala — 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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MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931

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Crl.Rev.Pet.No. 1511 of 2001()

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-----------------------------CRA.453/2000 of ADDL.SESSIONS COURT, NORTH PARAVUR CC.768/1997 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR

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REVN. PETITIONER(S): APPELLANT - ACCUSED

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M.S.SUNILKUMAR, S/O. SACHIDANANDAN, MANIYALIL, VADAKKEKKARA, N. PARUR.

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BY ADV. SRI.SHAIJAN C.GEORGE

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RESPONDENT(S): RESPONDENTS - COMPLAINANT

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA, ERNAKULAM.

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PERINGOTTUKARA FINANCE & INVESTMENTS CO. LTD., REP. BY ITS DIRECTOR, P.J.JANARDANAN,

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S/O. JANARDANAN NAMBOODIRI, PAYAKKATTU MANA,

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KIZHIPPILLIKKARA P.O., THRISSUR.

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ADV. SRI.N.J.JOHNSON FOR R2

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PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR FOR R1

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2009, 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. 1511 of 2001

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Dated: DECEMBER 14, 2009

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ORDER

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The challenge in this revision by the accused is to the judgment of of Judicial First Class Magistrate Court, North Parur, in C.C. No.768/1997 dated 30.9.2000 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months which is confirmed in appeal by the Additional Sessions Court, North Parur in Crl.A.No.453/2000 by judgment dated 13.11.2001.

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The case of the revision 1^st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint is that the accused availed a loan of Rs.15,000/- from the Parur Branch of the complainant company agreeing to repay it with interest and that to discharge that liability the accused issued the cheque Ext.P2 dated 20.2.1997 for Rs.26,121.50 drawn on the Ernakulam District Co-operative Bank which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P5, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act.

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On receipt of the complaint the trial court recorded the sworn

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Crl.R.P.1511/01 2

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statement of PW.1, the Director of the complainant company and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused would say that the cheque was issued as security and that he is not liable to pay the amount. On the side of the accused DW.1 was examined.

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

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Heard counsel for the revision petitioner and the revision 2^nd

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respondent/complainant.

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The following points arise for consideration:-

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I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained?

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II. Whether the sentence imposed is excessive or unduly harsh?

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Crl.R.P.1511/01 3

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Point No.I

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PWs.1 and 2 were examined and Exts.P1 to P8 were marked on the side of the complainant. PW.1 testified in terms of the complaint. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P8.

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The case of the accused was that Ext.P1 cheque was issued as security and that therefore it is without any consideration. There is no substance in the above contention of the accused. There is absolutely no reliable evidence on the part of the accused to prove the same. DW.1 was examined in an attempt to prove the case of the accused. The trial court as well as the lower appellate court rejected his evidence. I find no reason to come to a different conclusion.

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For all these reasons accepting the evidence of PW.1, I hold that the trial court as well as the lower appellate court is perfectly justified in coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore, I confirm his conviction under sec.138 of the Negotiable Instruments Act.

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Point No.II

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As regards the sentence, the trial court imposed a sentence

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Crl.R.P.1511/01 4

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of simple imprisonment for three months which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1997, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.30,000/- would meet the ends of justice.

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In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. His sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.30,000/-, in default to undergo simple imprisonment for three months. His bail bonds are cancelled. One month time is granted for payment of fine. The fine amount, if realised, shall be paid to PW.1/the complainant as compensation as provided under sec.357(1) of Cr.P.C. The accused/revision petitioner shall surrender before the trial court on January 7, 2010 to receive his sentence.

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CRL.M.P.6993 of 2001

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Dismissed.

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P.Q. BARKATH ALI, JUDGE

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mt/-

M.S.Sunilkumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

M.S.Sunilkumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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