Partly allowed

Manoj Thomas v. M/S. U T I Bank

Kerala HC2 Feb 2012Crl.Rev.Pet/228/2012

Case brief

AI extract

What is this about?

Revision petition against conviction and enhanced sentence under Section 138 NI Act. Court confirmed conviction as evidence of debt and cheque issuance was established, granting two months for compensation payment instead of immediate default imprisonment.

What did the court decide?

Revision petition dismissed; conviction and sentence confirmed; two months granted to pay compensation to avoid default imprisonment.

Manoj Thomas Vs M/S. U T I Bank — 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 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933

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CRRP.No. 228 of 2012 ()

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CRA.546/2008 of ADDL.DIST. COURT (ADHOC)III, TRIVANDRUM ST.246/2005 of JMFC-V, TVM (SPL.COURT-MARKLIST CASES)

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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MANOJ THOMAS AGED 47 YEARS, S/O. THOMAS, TC.9/241, JAWAHAR NAGAR KOWDIAR, THIRUVANANTHAPURAM.

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BY ADVS.SRI.IEANS.C.CHAMAKKALA SRI.BINU B.SAMUEL

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COMPLAINANT(S)/RESPONDOENT/COMPLAINANT/STATE:

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1. M/S. U T I BANK

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REPRESENTED BY DEPUTY MANAGER, SUJITH JOSEPH IYPE

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ROOM NO.29, ANANTHAPURI, JAGATHI

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THIRUVANANTHAPURAM-695001.

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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, ERNAKULAM-682 031.

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R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

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

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tss

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P. BHAVADASAN, J.

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- - - - Crl.R.P. No. 228 of 2012

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- - - - Dated this the 31^st day of January, 2012.

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ORDER

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The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,05,672/-, and in default, to undergo simple imprisonment for a further period of fifteen days. It was also directed that if the fine amount is realised, the same shall be given to the complainant as compensation under Section 357(1) Cr.P.C. In appeal, the appellate court confirmed the conviction but modified the sentence as one of imprisonment till the rising of court and to pay compensation of Rs.1,05,672/- to the complainant under Section 357(3) Cr.P.C. and in default to undergo simple imprisonment for one month.

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Crl.R.P.228/2012.

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The accused is alleged to have availed of a loan from the complainant and issued Ext.P1 cheque in discharge of the said debt. Though the cheque was presented for encashment, it was returned for want of funds in the account of the accused. Statutory notice issued to the accused did not invoke any reply, and the amount remained unpaid. Hence the complaint was lodged.

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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 the accused, to which he pleaded not guilty and claimed to be tried. Complainant therefore examined the power of attorney holder as P.W.1 and had Exts.P1 to P10 marked. After the close of the prosecution 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. However, he chose to adduce no evidence. The trial court, on an

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Crl.R.P.228/2012. 3

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appreciation of the evidence in the case, came to the conclusion that the offence has been made out and accordingly, convicted and sentenced the accused as already mentioned. In appeal, the appellate court confirmed the conviction, but modified the sentence as mentioned earlier.

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Learned counsel appearing for the revision petitioner pointed out that there is no evidence to show that Ext.P1 cheque was infact issued by the accused to discharge a legally enforceable debt. There is no evidence as such to find the accused guilty.

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Both the courts below have considered the above contentions in considerable detail and had come to the conclusion that the cheque was infact issued by the accused. P.W.1 examined on behalf of the complainant has spoken in terms of the complaint. His evidence shows that the accused availed of a loan from the Bank and a sum of Rs.1.05,672/- is due from the accused. The complainant has

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Crl.R.P.228/2012. 4

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produced Exts.P9 and P10, which would show that the claim that a loan is said to have been availed of by the accused is true. There is no case that the loan amount has been repaid or that no amount is due from him. He does not dispute his signature in the cheque. There is no suggestion to P.W.1 that particulars were filled up by the complainant Bank. To crown it all, there is no reply to the statutory notice . If as a matter of fact, it was his case that no amount was due from him or that the cheque was misused, he would have immediately responded. His silence goes a long way in showing his culpability. It was the above facts, which had persuaded the courts below to come to the conclusion that the offence has been made out. The conviction has therefore only to be confirmed.

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Faced with the above situation, learned counsel appearing for the revision petitioner sought some time to effect payment of compensation as imposed by the lower appellate court so as to ward off default clause.

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Crl.R.P.228/2012.

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Considering the readiness and willingness expressed by the revision petitioner to pay the amount, it is felt that a short time can be granted to the revision petitioner to make the payment of the compensation amount awarded by the lower appellate court.

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In the result, while confirming the conviction and sentence awarded by the lower appellate court, the petitioner is granted two months from today to pay the compensation amount awarded by the lower appellate court, failing which, the default clause will take effect.

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The revision petition is disposed of as above.

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P. BHAVADASAN, JUDGE

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sb.

Manoj Thomas v. M/S. U T I Bank

Case brief

What is this about?

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Manoj Thomas v. M/S. U T I Bank

Case brief

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