Partly allowed

Wilfred Culas v. State of Kerala

Kerala HC14 Jun 2012Crl.Rev.Pet/1238/2012

Case brief

AI extract

What is this about?

This court confirmed the conviction of the petitioner under Section 138 of the Negotiable Instruments Act for cheque dishonour. The judgment retained the sentence of imprisonment pending payment but enhanced the fine to Rs. 2,25,000, granting a six-month period for payment to avoid default imprisonment.

What did the court decide?

Conviction confirmed; fine enhanced to Rs. 2,25,000; petitioner granted six months to pay to avoid four months default imprisonment.

Wilfred Culas Vs State of Kerala — Cheque Dishonour | Kerala HC (2012)

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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 C.T.RAVIKUMAR

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THURSDAY, THE 14TH DAY OF JUNE 2012/24TH JYAISHTA 1934

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Crl.Rev.Pet.No. 1238 of 2012 ()

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(AGAINST THE JUDGMENT DATED 30.1.2012 IN CRA.866/2008 of ADDL.SESSIONS JUDGE (FAST TRACK COURT III), TRIVANDRUM IN ST.911/2006 of JUDICIAL FIRST CLASS MAGISTRAE COURT VIII TRIVANDRUM)

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REVISION PETITIONER(S):

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WILFRED CULAS SPECIAL ASSISTANT, STATE BANK OF INDIA MARAKKADA ROAD BRANCH, MARAKKADA THIRUVANANTHAPURAM.

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BY ADV. SRI.SHAJIN S.HAMEED

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COMPLAINANT(S):

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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S.GOPALAKRISHNAN

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T.C 21/175 (1), SAMAJAM LANE, KARAMANA P.O THIRUVANANTHAPURAM PIN CODE 695 002.

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R1 BY BY PUBLIC PROSECUTOR SMT.SEENA RAMACHANDRAN R2 BY ADV. SRI.J.HARIKUMAR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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al.

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C.T. RAVIKUMAR, J.

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===========================

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CRL. R.P. NO. 1238 of 2012

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===========================

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Dated this the 14^th day of June 2012

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O R D E R

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This revision petition has been filed against the judgment

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in Criminal Appeal No. 866/2008 of the Additional Sessions Judge (Fast Track Court-III), Thiruvananthapuram. As per the said judgment, the conviction under Section 138 of the Negotiable Instruments Act imposed against the petitioner as per the judgment in S.T.No. 911/2006 dated 30-09-2008 of the Judicial First Class Magistrate-VIII, Thiruvananthapuram was confirmed. However, the sentence imposed by the trial court was modified as sentence to undergo imprisonment till rising of the court and to pay a fine of Rs. 2,00,000/- with in default sentence of simple imprisonment for one month. The fine amount, if paid, was directed to be given to the first respondent/complainant. This revision petition has been filed in the said circumstances.

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CRL. R.P. NO. 1238 of 2012 # 2#

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I have heard the learned counsel for the petitioner

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and also the learned counsel for the 2^nd respondent. The complainant was examined as PW1 and Exts. P1 to P5 were marked. There was no oral or documentary evidence on the side of the defence. After appreciating the oral and documentary evidence the trial court found that all the ingredients to attract an offence under Section 138 have been proved by the prosecution against the revision petitioner herein and accordingly, found him guilty under Section 138 of the Negotiable Instruments Act. Consequently, he was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 2 lakhs and in default payment of fine to undergo simple imprisonment for one month. The petitioner took up the matter in appeal as Criminal Appeal No. 866/2008. That appeal was dismissed by the appellate court as per the impugned judgment. While confirming the conviction the sentence was modified as mentioned above. The first question is

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CRL. R.P. NO. 1238 of 2012 # 3#

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whether any ground has been made out by the revision petitioner herein to interfere with the concurrent finding of conviction recorded by the courts below. Evidently, the courts below on evaluation of the evidence found that the cheque in question was validly drawn in the name of the complainant in discharge of a legally enforceable debt. The courts below have also found that all the statutory procedures have been strictly adhered to and the prosecution has succeeded in proving all the ingredients to attract the offence of Section 138 of the Negotiable Instruments Act against the revision petitioner. An appreciation of the evidence and interference with the concurrent recording of conviction is called for only in a case where there is palpable, perverse appreciation of evidence by the courts below. The petitioner could not bring out a case to show that there is palpable, perverse appreciation of evidence warranting interference. In the said circumstances, I am of the view that the concurrent conviction recorded by the courts'

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CRL. R.P. NO. 1238 of 2012 # 4#

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below calls for no interference by exercising the revisional power. Resultantly, the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act is hereby confirmed.

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The next question to be considered is regarding the

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legality and sustainability of the sentence imposed against the revision petitioner. While confirming the conviction, the appellate court had modified the sentence. He was sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 2,00,000/- to the 1^st respondent herein/complainant and in default sentence to undergo simple imprisonment for one month. The learned counsel for the petitioner submits that the revision petitioner is prepared to deposit/pay the amount of fine as ordered by the appellate court and he seeks for some time to pay the amount. The learned counsel for the 2^nd respondent fairly submits that a reasonable time can be granted for the said purpose.

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CRL. R.P. NO. 1238 of 2012 # 5#

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In the said circumstances, while retaining the

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sentence to undergo simple imprisonment till the rising of the court, I am of the view that the ends of justice could be met by enhancing the amount of fine imposed by the appellate court to Rs. 2,25,000/- and also by ordering appropriate default sentence. It is permissible after the decision of the Hon'ble Apex Court in Vijayan v. Sadanandan K and another reported in (2009) 6 SCC 652.

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Resultantly, while confirming the conviction and

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retaining the sentence of imprisonment till the rising of the court, that part of the order of sentence imposing a fine of Rs. 2,00,000/is enhanced to Rs. 2,25,000/-. The petitioner shall deposit the said amount before the trial court or directly pay the amount of Rs. 2,25,000/-, within a period of six months from today. In case of failure of the petitioner to deposit/pay the amount mentioned above directly to the 2^nd respondent, he shall undergo simple

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CRL. R.P. NO. 1238 of 2012 # 6#

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imprisonment for a period of four months. To receive the sentence of imprisonment till the rising of the court the petitioner shall

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surrender before the trial court on or before 14-8-2012.

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This revision petition is disposed of confirming the

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conviction and modifying the sentence as above.

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C.T. RAVIKUMAR (JUDGE)

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kvr/

Wilfred Culas v. State of Kerala

Case brief

What is this about?

What did the court decide?

Wilfred Culas v. State of Kerala

Case brief

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What did the court decide?

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