Dismissed

P.P.Kuriakkose,S/O.Philip,Changanacherry v. M.Haris,S/O.Late Pokku,and Another

Kerala HC16 Feb 2012Crl.Rev.Pet/167/2011

Case brief

AI extract

What is this about?

High Court Kerala dismissed a criminal revision petition against conviction under Sections 138 NI Act and 420 IPC for cheque bounce and cheating. The Court upheld the lower courts' findings that the complainant's evidence was reliable and the accused's defence was insubstantial.

What did the court decide?

Conviction and sentence under Section 138 NI Act and Section 420 IPC are confirmed; revision petition dismissed.

P.P.Kuriakkose,S/O.Philip,Changanacherry Vs M.Haris,S/O.Late… — 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 P.BHAVADASAN

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THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933

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Crl.Rev.Pet.No. 167 of 2011 (A)

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CRA.215/2006 of ADDITIONAL SESSIONS COURT(ADHOC)-III, THALASSERY CC.639/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT,KUTHUPARAMBA

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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P.P.KURIAKOSE, S/O. PHILIP,

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PULLUKATTU, VAZHAPPALLY, CHANGANACHERRY KOTTAYAM DISTRICT.

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BY ADV. SRI.T.P.PANKAJAKSHAN

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

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1. M.HARIS, S/O. LATE POKKU, FATHIMA MANZIL, KUTHUPARAMBA AMSOM, NANVOOR DESOM P.O.KUTHUPARAMBA, THALASSERY TALUK.

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

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R1 BY ADVS. SRI.SHANAVAS NALAKATH RANDUPURAYIL R1 BY SRI.ANIL.D.KAITHAKKAL R1 BY SRI.K.RAJESH SUKUMARAN R1 BY SRI.K.K.SUSHEER R2 BY PUBLIC PROSECUTOR SRI T.R. RAJESH

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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LSN

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P.BHAVADASAN, J.

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- - - - Crl.R.P.No.167 of 2011

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Dated this the 16^th day of February, 2012

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O R D E R

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The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the IPC. He was acquitted of the charges under Section 420 IPC, but was convicted for the offence punishable under Section 138 of Negotiable Instruments Act. He was sentenced to suffer simple imprisonment for a period of 3 months and to pay a compensation of Rs.1,50,000/- to the complainant. In default of payment of which, he had to suffer simple imprisonment for a further period of three months. In appeal the lower appellate court found no grounds to interfere with the conviction and sentence and accordingly dismissed the suit.

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When this matter was came up for admission on 18.1.2011, this Court had directed the deposit of Rs.75,000/- by the petitioner. By order dated 24.02.2011 the period was further extended by one month. The learned

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Crl.R.P.No.167 of 2011

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counsel for the respondent pointed out that the amount has not been deposited so far.

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In spite of the repeated posting for hearing of this petition, the learned counsel for the revision petitioner felt it unnecessary to address the court and kept way from the Court.

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The short case of the complainant is that he was in close contact with the accused who is a resident of Changanachery. Having come to know that the complainant and his friend P.P.Subair were in search for a job visa to go abroad, the accused offered complainant and Subair two visas on condition that the complainant and his friend pay a sum of Rs.1,25,000/- each. The said incident occurred in the beginning of the year 1999. The complainant is said to have expressed his inability to raise such a huge amount within such a short period and requested the accused to procure a visa by the end of March. In the meanwhile complainant would raise the funds to pay the accused. It is alleged that after convincing the complainant that he had

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Crl.R.P.No.167 of 2011

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made necessary arrangement for procuring visa on 20.04.1999 the accused approached the complainant. Then the complainant paid a sum of Rs.75,000/-. The complainant’s friend also paid Rs.75,000/- on 10.03.1999. It is alleged that the complainant and his friend handed over their passports also at the time of paying the advance amount. However the accused did not procure the visa as promised and did nothing in the matter. Then the complainant realized that he has been cheated and demanded the money back. The accused is then said to have issued Ext.P1 cheque. He also issued another cheque to the friend of the complainant Subair. At the request of the accused, presentation of the cheque was postponed and ultimately when the complainant became certain that no visa could be procured by the accused, the cheque was presented for en-cashment. The cheque was returned with the endorsement ‘account closed’. A statutory notice was issued to the accused. A reply was send contending false statements. Hence the complaint was laid.

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Crl.R.P.No.167 of 2011

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Cognizance of the offence was taken by the court below. Initially cognizance of offence under Section 420 IPC alone was taken and trial proceeded. Particulars of the offence were read out to the accused and he pleaded not guilty and evidence was adduced. After the close of the complainant’s evidence, the accused was questioned under Section 313 Cr.P.C. Defence evidence was also adduced. At the time of argument, it came to the notice of the trial court that evidence discloses prima facie the commission of an offence punishable under Section 138 of NI Act also. No cognizance had been taken for the offence punishable under Section 138 of NI Act. After hearing both sides, cognizance of the offence under Section 138 NI Act was also taken and charge was framed for that offence also. PWs 1 to 3 were recalled and re-examined. The accused was further examined under Section 313 Cr.P.C. Subsequently the accused did not choose to adduce any further evidence.

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On an appreciation of the evidence in the case, the trial court came to the conclusion that the offence under

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Crl.R.P.No.167 of 2011

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Section 138 of NI Act had been made out and accordingly convicted and sentenced him as already mentioned. In appeal, the appellate court found no grounds to interfere with the judgment of the trial court and confirmed the conviction and sentence.

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The learned counsel for the respondent was heard, since the counsel for the revision was not present today also, in spite of several opportunities given to him to address this Court in the matter. This Court therefore heard the respondent’s counsel and also perused the records to find out if there is any illegality, impropriety or irregularity in the orders of the courts below.

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The evidence regarding the issuance cheque and return of the cheque were spoken to by PWs 1 and 2. Both of them spoke about the statements in the complaint in detail and gave the identical version about the incident. It is significant to notice that the accused had not disputed his signature on Exts.P1 and P2 cheques. Defence set up by the accused was that these two cheques were given to

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Crl.R.P.No.167 of 2011

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another person for another transaction. The complainant has managed to obtain the same and filed false complaint. In order to substantiate his case DW1 was examined. He is an employee in A.K. Food Products in Changanachery which is close to the office of the accused. He deposed that he had written an agreement as requested by the accused. He also says that he saw a woman giving money to the accused and the accused is a real estate broker. According to him, the accused had no business of procuring visa. He does not own Travel Agency also. Ext.D1 got marked by the accused is an agreement written on a plain paper between the accused and one Mariyamma Joseph. It is mentioned in Ext.D1 that a sum of Rs.1,50,000/- have been given by the accused to Mariyamma Joseph towards the value of a Maruthi Car purchased from her. Ext.D1 also makes mention of two cheques which were given by the accused to Mariyamma Joseph were lost from the hands of her.

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It is significant to notice that neither the accused nor Mariyamma Joseph was examined to prove the said

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Crl.R.P.No.167 of 2011

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transaction. The lower courts have considered the value of Ext.D1 document and found that it is open to serious doubt. Evidence of DW1 has been analysed in detail by both the courts below and had come to the conclusion that his evidence is far from satisfactory to substantiate the defence set up by the accused. It is also important to notice that Ext.D1 was written on a plain paper and both the courts below felt that it cannot be given any value.

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Admittedly the cheques produced by the complainant contain the signatures of the accused. There is no suggestion to PWs 1 and 2 that the particulars in the cheques were filled up by them. He could offer no satisfactory explanation as how Exts.P1 and P2 cheques came into the hands of the complainant.

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The complainant then examined PWs 1 and 2 to prove due execution and issuance of the cheque. Both the courts below have analyzed the evidence and come to the conclusion that evidence adduced by the complainant is acceptable and there is no reason to doubt the version given

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Crl.R.P.No.167 of 2011

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by the complainant. The findings of the courts below are based on appreciation of the evidence and is not shown to be perverse. Since no illegality, irregularity or impropriety is seen on the findings of the courts below, no interference in this revision petition is called for.

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The result is that this revision petition is without any merits and liable to be dismissed. I do so, in confirming the conviction and sentence passed by the courts below.

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P.BHAVADASAN, JUDGE

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kkj

P.P.Kuriakkose,S/O.Philip,Changanacherry v. M.Haris,S/O.Late Pokku,and Another

Case brief

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P.P.Kuriakkose,S/O.Philip,Changanacherry v. M.Haris,S/O.Late Pokku,and Another

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