Allowed

Koshy George v. Joseph George

Kerala HC6 Feb 2012Crl.Rev.Pet/19/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the revision petition and confirmed the conviction and modified sentence. The court granted the appellant two months to pay the compensation ordered by the lower appellate court to avoid imposition of the default sentence.

What did the court decide?

Revision petitioner granted two months time from today to pay the compensation amount ordered by the lower appellate court.

Koshy George Vs Joseph George — 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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MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933

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Crl.Rev.Pet.No. 19 of 2012 ()

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IN CRA.NO.355/2010 of ADDL.DISTRICT COURT (ADHOC), KOTTAYAM IN ST.NO.1812/2006 of JUDICIAL FIRST CLASS MAGISTRATE-II,VAIKOM

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RIVISION PETITIONER/APPELLANT/ACCUSED :

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KOSHY GEORGE, S/O. GEORGE, CLINOTEC LAB, PETTAKKAVALA, KANJIRAPPALLY.P.O.,KANJIRAPPALLY TALUK.

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BY ADVS.SRI.K.SHAJ

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SRI.SAJJU.S

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RESPONDENTS/COMPLAINANTS/STATE:

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1. JOSEPH GEORGE,

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S/O. JOSEPH, POOTHETHUKUNNEL HOUSE,

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PADINJAREKKARA.P.O., NADUVILE VILLAGE.

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2. STATE OF KERALA,

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REPRESENTED BY THE PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA.

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R2 BY ADV.SRI.T.R.RAJESH, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P.BHAVADASAN, J.

Crl.R.P.No.19 of 2012

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- - - - Dated this the 6^th day of February, 2012 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. He was found guilty. Therefore he was convicted and sentenced to suffer simple imprisonment for a period of one year and to pay a fine of 1,50,000/- which should be paid as compensation under Section 357(1) of Cr.P.C. In default of payment of which, he had to suffer simple imprisonment for a further period of six months. In appeal, the lower appellate court confirmed the conviction but modified the sentence, which reads as follows:-

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In the result, appeal allowed in part. The conviction of the appellant under S.138 of the NI Act is confirmed and sentence is modified as follows: In super cession the sentence awarded by the JFCM-II, Vaikom the accused is sentenced to undergo imprisonment till rising of court and ordered to pay a fine of Rs.80,000/-. In default of payment of fine, the appellant/accused shall undergo simple imprisonment for three month. If the fine amount is realized the same shall be paid to the respondent/complainant as compensation. In case compensation amount is not paid within 60 days, the learned

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-:2:-

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Crl.R.P.No.19 of 2012

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magistrate shall issue appropriate steps against the accused for execution of the sentence awarded to him under S.138 of the N.I.Act.

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The learned counsel appearing for the revision petitioner pointed out that the courts below have not appreciated the evidence in the proper perspective. When the accused denied the execution of the cheque and also that the documents produced by the accused have not been properly considered by courts below and if that had been done, the courts below could find that execution of the cheque is not proved.

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The complainant’s case was that in order to discharge a liability of Rs.75,000/- due to him, the accused issued Ext.P1 cheque. The cheque on presentation bounced for want of funds in the account of the accused. A statutory notice issued to the accused neither invoked any response nor was the amount paid. Therefore the complaint was laid alleging offence under Section 138 of the Negotiable Instruments Act.

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-:3:-

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Crl.R.P.No.19 of 2012

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Cognizance of the offence was taken and on appearance of the accused, particulars of the offence were read out to him, to which he pleaded not guilty and claimed to be tried. Therefore the complainant examined himself as PW1 and had Exts.P1 to P6 marked. After the close of the complainant’s evidence the accused was questioned under Section 313 Cr.P.C. He denied all incriminating circumstances brought out in evidence against him and claimed that he is innocent. According to him, he was a subscriber to a chitty run by the complainant company. The chitty was prized in his favour. His mother in law therefore furnished three signed blank cheques and 3 blank signed stamp papers to the complainant as security for the chitty and those documents were not returned even after the debt was discharged. In support of his defence, he had examined DWs 1 and 2 and Exts. D1 to D8 were marked. Both the courts below have considered the evidence in detail and had come to the conclusion that the cheque has been issued to

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-:4:-

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Crl.R.P.No.19 of 2012

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discharge the said liability to the complainant and the defence set up by the accused has not been proved

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Both the courts below have considered the claim of the accused that the cheque was handed over in connection with chitty transaction and that he had discharged the amount due to him. Both the courts below concurrently found that documents produced and evidence of DWs 1 and 2 are not sufficient to establish the defence case. It is found that the documents produced by the accused are not convincing enough to establish the plea of discharge.

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Moreover, if as a matter of fact the debt was discharged, it was improbable that no steps would have been taken to get the cheques returned. One has also to note that the claim of the accused was that his mother in law had issued the cheques, but cheques in the possession of the complainant contains his signature and there is no explanation regarding that aspect.

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Moreover he admits his signature on the cheque.

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-:5:-

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Crl.R.P.No.19 of 2012

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But he has no case that the particulars in the cheque were entered by the complainant or someone else at his behest. He was unable to answer the question as to how the cheque had come into the possession of the complainant. It was the above facts that persuaded the courts below to come to the identical conclusion. Again the accused thought it unnecessary to respond to the statutory notice. His silence goed to show that his culpability.

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Findings are based on the evidence on record and no interference is called for in the revisional jurisdiction.

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Faced with the above situation, the learned counsel appearing for the revision petitioner pointed out that he may be granted some time pay the amount awarded by the lower appellate court so as to ward off the default sentence.

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Considering the nature of the case and also the readiness and willingness on the part of the revision petitioner to pay the amount, it is felt that he may be granted some time to pay the compensation amount, though

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-:6:-

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Crl.R.P.No.19 of 2012

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this Court notice that lower appellate court has granted 60 days time to pay the compensation amount.

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In the result, while confirming the conviction and sentence passed by the lower appellate court, the revision petitioner is granted two months time from today to pay the amount ordered by the lower appellate court, and in default of payment of which, the default clause imposed by the lower appellate court shall take effect.

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P.BHAVADASAN, JUDGE

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kkj

Koshy George v. Joseph George

Case brief

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Koshy George v. Joseph George

Case brief

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