Partly allowed

Shine.D v. Bell Leasing

Kerala HC1 Feb 2012Crl.Rev.Pet/6/2012

Case brief

AI extract

What is this about?

High Court of Kerala in CRRP.No. 6 of 2012 dismissed objections regarding late documents not put to appellant, upheld conviction under Section 138 NI Act, and granted five months to pay compensation to ward off default imprisonment.

What did the court decide?

Granted five months time from the judgment date to pay the compensation amount of Rs.6,25,000/- with failure to pay resulting in the operation of the default clause.

Shine.D Vs Bell Leasing — 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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WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933

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CRRP.No. 6 of 2012 ()

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iN CRA.245/2010 of SPL.C SPE/CBI-I&3 ADD.DC.ADD MACT,EKM .NO./ IN ST.1311/2008 of J.M.F.C. - IV, ERNAKULAM

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PETITIONER/APPELLANT/ACCUSED:

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SHINE.D

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S/O.DAMODHARAN, AGED 42, KOVALAYIL HOUSE, VENGALLOOR.P.O. THODUPUZHA, IDUKKI DISTRICT.

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BY ADV. SRI.N.K.KARNIS

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RESPONDENTS/COMPLAINANT AND STATE:

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1. BELL LEASING & HIRE PURCHASE LTD., 40/9715, BHAGEERATHA SANTHWANA, CHITTOOR ROAD KOCHI-682018 REPRESENTED BY POWER OF ATTORNEY HOLDER, JOY JOHN S/O.JOHN CHERIAN.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031

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R BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.BHAVADASAN, J.

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- - - - - - - - - - - - - - - - - - - - Crl.R.P.No.6 of 2012

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Dated this the 1^st day of February, 2012

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O R D E R

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The accused in this case was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty. Accordingly he was convicted and sentenced to suffer simple imprisonment for six months and to pay a fine of Rs.6,25,000/- as compensation to the complainant, in default of payment of which he had to suffer simple imprisonment for a further period of thee months. In appeal the lower appellate court confirmed the conviction but modified the sentence as to one of simple imprisonment till rising of the court and the compensation part of the sentence awarded by the trial court was retained.

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The complainant Company is engaged in hire purchase business and extends loans for purchase of vehicles and machineries. The accused and his wife had approached the complainant for purchasing two Eicher

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Crl.R.P.No.6 of 2012

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Lorries and they are alleged to have executed separate hire purchase agreements in favour of the complainant and purchased the vehicles. They defaulted in paying the amount due from them. After repeated requests, the accused finally issued Ext.P3 cheque for a sum of Rs.6.25Lakhs. When cheque was presented for encashment, it was returned for want of funds in the account of the accused. A Statutory notice issued to the accused was received by the accused but invoked no response. The amount remained unpaid, hence the complaint was laid.

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Cognizance of the offence was taken by the trial court. 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. On behalf of the Company, the authorized representative was examined as PW1 and had Exts.P1 to P8 were marked. After the close of the complainant’s evidence the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating

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Crl.R.P.No.6 of 2012

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circumstances brought out in the evidence against him. He had Exts.D1 to D5 marked in defence.

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On a consideration of the materials before it, the

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trial court came to the conclusion that the offence had been made out and held the accused guilty and convicted and sentenced as already mentioned. In the appeal the sentence was modified.

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The learned counsel appearing for the revision petitioner raised the contention that Ext.P7 and P8 series of documents were produced after the accused was questioned under Section 313 of Cr.P.C and was subsequently marked by the complainant. These incriminating items of evidence were not put to the accused or in another words he was not questioned with regard to those items of evidence and therefore the trial court could not have relied on those items of evidence to find the accused guilty.

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The appellate court has considered the contentions

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Crl.R.P.No.6 of 2012

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specifically. It is seen from the judgments of the court below that the accused and his wife had availed of two loans facilities for purchasing the vehicles. The issuance of Ext.P3 cheque is not disputed. The contention was that there was only one transaction and the claim of the company that two loans were availed was incorrect. However the court below found that the complainant has produced documents to show that the accused and his wife were availed of loan facilities and defaulted in payment of the amount to the company. Ext.P2 and P2 (a) are the hire purchase agreements which contained the signatures of the accused and his wife. These signatures are not disputed. In the light of Ext.P2 and P2(a) ,it is idle for the accused to contend that there was only one transaction.

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The lower appellate court has observed that even though Ext.P7 series and Ext.P8 series of documents were marked subsequently, i.e. subsequent to the questioning of accused under Section 313 Cr.P.C., it does not appear that

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-:5:-

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Crl.R.P.No.6 of 2012

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the accused was questioned with reference to those items of documents of evidence, it was not those items of documents which were relied on the trial court to find the accused guilty. There were other clinching items of evidence to show that the accused along with his wife had availed of two loans and had defaulted payments of loan amounts to the company. Those findings of the lower appellate court are not shown to be erroneous or contrary to the evidence. The lower appellate court has considered the contention and found that no prejudice has been caused to the accused. Evidence of PW1 was sufficient to show that Ext.P3 cheque was issued in discharge of the debt and the cheque had bounced for want of funds in the account of the accused. Since the due execution of the cheque was proved, presumption available under Section 139 and 118 (a) of Negotiable Instruments Act were available to the complainant. The burden was on the accused to rebut those presumption. He had failed to do so. Therefore both the

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Crl.R.P.No.6 of 2012

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courts below were justified in coming to the conclusion that the offence had been made out.

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The lower appellate court has shown considerable leniency in the matter of sentence by reducing the sentence as imprisonment till the rising of the court and directing payment of Rs.6,25,0000/- with a default clause.

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Faced with the above situation, the learned counsel appearing for the revision petitioner pointed out that as the amount is huge, some time may be granted to effect the payment and to ward off the default sentence.

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Transactions were of the year 2008. But, however considering the fact the petitioner has expressed his willingness and readiness to pay the amount to ward off the default clause, it is felt that some time can be granted for payment of compensation awarded by the courts below.

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In the result, while confirming the conviction and sentence passed by the lower appellate court, the revision petitioner is granted five months time from today to pay the

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Crl.R.P.No.6 of 2012

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compensation amount as awarded by the courts below, on failure to pay which, the default clause awarded by the lower appellate court shall be taken effect.

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P.BHAVADASAN, JUDGE

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kkj

Shine.D v. Bell Leasing

Case brief

What is this about?

What did the court decide?

Shine.D v. Bell Leasing

Case brief

What is this about?

What did the court decide?

What the court decided

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