Partly allowed

M.R.Sudheesh v. the State of Kerala and Another

Kerala HC6 Feb 2012Crl.Rev.Pet/296/2012

Case brief

AI extract

What is this about?

In a criminal revision petition regarding cheque dishonour, the High Court of Kerala confirmed the accused's conviction but set aside the original sentence. The Court directed the accused to serve simple imprisonment till the rising of the court and pay compensation of Rs. 60,000 within two months to avoid further imprisonment.

What did the court decide?

Conviction confirmed; sentence set aside and re-imposed as simple imprisonment till the rising of the court with a stay. Compensation of Rs. 60,000 to be paid within two months otherwise to undergo th

M.R.Sudheesh Vs the State of Kerala and Another — 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. 296 of 2012 ( )

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CRA.355/2007 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD STC.397/2006 of JUDICIAL FIRST CLASS MAGISTRATE-II. - VI, KOZHIKODE

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PETITIONER/APPELLANT/ACCUSED:

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M.R.SUDHEESH, AGED 27 YEARS, S/O.M.P.SUDARSHANAN, MAILUMUTIL HOUSE, NATTAKAL P.O, WEST ELERI VILLAGE, HOSDURG TALUK, KASARGODE.

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BY ADV. SRI.V.R.REKESH

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RESPONDENTS/STATE & COMPLAINANT:

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1. THE STATE OF KERALA,

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REPRESENTED BY THE PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA, ERNAKULAM.

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2. U.BALAKRISHNAN,

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AGED 56 YEARS,

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S/O.LATE KRISHNAN,

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'KARTHIKA', UPPILIKKAI,

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PUDUKKAI VILLAGE-671 314.

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R1 BY ADV.SRI.SEENA RAMAKRISHNAN, 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:

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P.BHAVADASAN, J.

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- - - - Crl.R.P.No.296 of 2012

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- - - - Dated this the 6^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. He was found guilty. Accordingly, he was convicted and sentenced to suffer simple imprisonment for a period of six months and to pay a sum of 60,000/- as compensation to the complainant under Section 357(3) of Cr.P.C., in default of payment of which, he had to suffer simple imprisonment for a period of three months. In appeal, the lower appellate court confirmed the conviction and sentence and dismissedthe appeal.

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The short case put forward by the complainant was that, the accused had borrowed a sum of Rs.1,20,000/- and in discharge of the said debt, he issued two cheques of Rs.60,000/- each. One of the said cheques, namely Ext P1, on presentation bounced for want of funds in the account of the accused. Statutory notice issued to the accused neither

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Crl.R.P.No.296 of 2012

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invoked any response nor was the amount paid. Since the amount remained unpaid, 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. Therefore the complainant examined himself as PW1 and had Exts. P1 to P4 marked. After close of the complainant’s evidence, the accused was questioned under Section 313 Cr.P.C. He denied having any transaction with the complainant. He stated that he has not borrowed any amount from the complainant. However no evidence was adduced in support of his defence.

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Both the courts below, on a consideration of the materials before it, came to the conclusion that the offence had been made out. Going by the evidence of the complainant and in the light of absence of evidence from the defence side, both the courts below came to the above conclusion.

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Crl.R.P.No.296 of 2012

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The learned counsel appearing for the revision petitioner pointed out that there was no liability on his part to discharge and in the absence of any such liability, the accused could not have been found guilty.

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It is significant to notice that the complainant has spoken about the borrowal of a sum of Rs.1,20,000/- from him by the accused. In order to discharge the said debt , the cheques were issued to him by the accused. The said cheque on presentation, bounced for want of funds in the account of the accused. It is seen that the accused initially did not cross examine the complainant. Later on, he filed an application under Section 311 Cr.P.C. which was allowed on condition of payment of costs. Due to nonpayment of cost, that application was dismissed. The result was that the evidence adduced by the complainant stood unimpeached. The lower appellate court also found that there was no justification for the complaint that the accused was not given adequate opportunity to adduce his evidence. Therefore there is no merit in the claim that no opportunity

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Crl.R.P.No.296 of 2012

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was given to him to adduce evidence in support of his case.

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Apart from the above facts, it is not disputed that the cheque contains the signature of the accused and is drawn on the account maintained by the accused. He was unable to give satisfactory explanation as to how the cheque had come in the possession of the complainant. Although the statutory notice was received by him, he remained passive to the same. If he had a case that he owed no money to the complainant or that the cheque has been misused by the complainant, he would have been immediately responded to the notice issued to him. His silence goes a long way in showing his culpability. The above facts had persuaded the courts below to find that the offence has been made out. The findings of the courts below are based on appreciation of the evidence and are not shown to be perverse or unwarranted by the materials on record.

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Faced with the above situation, the learned counsel appearing for the revision petitioner pointed out that the

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Crl.R.P.No.296 of 2012

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sentence imposed by the courts below is highly disproportionate to the offence committed by the accused and some leniency may shown with regard to the sentence awarded and also sought for some time to pay the compensation amount so as to ward off the default sentence.

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There seems to be some substance in the complaint laid by the revision petitioner. It is true that the cheque was dishonored and the accused has failed to establish his defence. But, considering the facts and circumstances of the case, it is felt that the sentence imposed is excessive.

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In the result, while confirming the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, sentence awarded by courts below is set aside and the accused is directed to undergo simple imprisonment till the rising of the court and to pay a compensation of Rs.60,000/- to the complainant within a period of two months from today, in default of payment of which he shall suffer simple imprisonment for a period of

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Crl.R.P.No.296 of 2012

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three months.

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The amount of Rs.25,000/- said to have been deposited by the petitioner in pursuance of the order of this Court dated 03.12.2011 will be adjusted towards the compensation payable to the complainant.

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P.BHAVADASAN, JUDGE

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kkj

M.R.Sudheesh v. the State of Kerala and Another

Case brief

What is this about?

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M.R.Sudheesh v. the State of Kerala and Another

Case brief

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