Allowed

M. Nazar v. K. Gopinathan Pilla

Kerala HC30 Jan 2012Crl.Rev.Pet/201/2012

Case brief

AI extract

What is this about?

Single judge of Kerala High Court considered a criminal revision petition challenging conviction under Section 138 of NI Act. Court upheld lower courts' findings as evidence was properly appreciated. Granted two months for respondent to pay compensation to avoid default sentence.

What did the court decide?

Time of two months granted to apply to pay compensation amount; default sentence to take effect if not paid.

M. Nazar Vs K. Gopinathan Pilla — 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 30TH DAY OF JANUARY 2012/10TH MAGHA 1933

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CRRP.No. 201 of 2012 ()

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CRA.527/2008 of I ADDL.SESSIONS COURT, KOLLAM CC.790/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA

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REVISION PETITIONER/APPELLANT/ACCUSED:

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M. NAZAR

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S/O. MYTHEENKUNU, KANDATHIL VEEDU SOUTH MYNAGAPPALLY MURI, MINAGAPPALLI VILLAGE KOLLAM-690519.

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BY ADV. SRI.SANIL KUMAR

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RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:

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1. K. GOPINATHAN PILLAI, LEKSHMI VIHAR, KADAPPAMURI, MYNAGAPPALLI VILLAGE KOLLAM-690519.

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

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R2 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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svs

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CRRP. NO. 201/2012

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE 1:THE JUDGMENT DATED 30/10/2008 IN CC. NO.790/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT AT SASTHAMCOTTA

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ANNEXURE II:CERTIFIED COPYOF THE JUDGMENT DATED 03/10/2011 IN CRL.APPEAL NO.527/2008 OF 1-ADDL. SESSION COURT AT KOLLAM.

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

P.A. TO JUDGE.

svs

P. BHAVADASAN, J.

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- - - - Crl.R.P. No. 201 of 2012

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Dated this the 30^th day of January, 2012.

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ORDER

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Having found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, he was convicted and sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs.1,00,000/-, and in default, to undergo simple imprisonment for a further period of two months. The compensation was directed to be handed over to the complainant under Section 357(3) of Cr.P.C. In appeal, the same was confirmed.

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According to the complainant, the accused had purchased gold ornaments from the complainant worth Rs.1,00,000/- and in order to discharge the said debt had issued Ext.P1 cheque. The cheque on presentation was returned with the endorsement 'funds insufficient'.

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Crl.R.P.201/2012.

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The statutory notice issued to the accused was cleverly evaded by him. Since the amount remained unpaid, the complaint was lodged.

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Cognizance of the offence was taken by the court below. On appearance of the accused, particulars of the offence were read out to the accused, to which he pleaded not guilty and claimed to be tried.

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The complainant examined himself as P.W.1 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., in which he denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He examined D.W.1 in support of his defense. According to the defence case, the complainant had sold gold ornaments to the accused. But D.W.1 was unaware whether any cheque was issued by the accused to the complainant. On an

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Crl.R.P.201/2012.

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appreciation of the evidence in the case, the trial court came to the conclusion that the accused was not successful in establishing his defence and on the other hand the complainant had adduced sufficient evidence to show that the cheque was issued in respect of the debt due to him. Accordingly, the conviction and sentence as already mentioned followed. The appeal met with failure.

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Learned counsel appearing for the revision petitioner contended that the evidence of D.W.1 has not been properly appreciated by the trial court and had the court below done so, it would have been seen that the claim of the complainant is false. There is nothing to show that Ext.P1 cheque was issued as claimed by the complainant and there is nothing to show that it was infact executed by the accused.

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P.W.1 is the complainant. He speaks in terms with the complaint. He speaks about the issuance of the

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Crl.R.P.201/2012. 4

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cheque by the accused and also its return for want of funds when presented for encashment. Even though the accused examined D.W.1 to substantiate his case, his evidence was found wanting in many respects. All that D.W.1 said was that he had seen sale of gold ornaments to the accused, but he did not say that he did not see the cheque being issued to the complainant. He says that he was not aware of the same. One fails to see how the evidence of D.W.1 can help the accused.

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It is to be noticed that the signature in the cheque is admitted and so also its issuance. There is no case that particulars were filled up by the complainant. Complainant's evidence was found to be acceptable by both the courts below. The accused was unable to explain the circumstances under which the complainant came into the possession of the cheque containing the signature of the accused and it was these facts which had persuaded the

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Crl.R.P.201/2012.

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court below to come to the conclusion that the accused was guilty. The findings of the courts below are based on appreciation of evidence on record and there is nothing to show that the findings are either perverse or unwarranted warranting interference under the revisional jurisidction.

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Faced with the above situation, learned counsel appearing for the revision petitioner prays that some time may be granted to pay the compensation amount awarded by the courts below so as to avoid default sentence.

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Considering the nature of the case, facts and circumstances of the same, and also the fact that he is willing to pay the amount, it is felt that some time can be granted to the petitioner to pay the compensation amount.

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In the result, while confirming the conviction and sentence passed by the courts below, the petitioner is granted two months from today to pay the compensation

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Crl.R.P.201/2012.

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awarded by the court below, failing which the default sentence imposed by the courts below will take effect.

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P. BHAVADASAN, JUDGE

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sb.

M. Nazar v. K. Gopinathan Pilla

Case brief

What is this about?

What did the court decide?

M. Nazar v. K. Gopinathan Pilla

Case brief

What is this about?

What did the court decide?

What the court decided

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