Partly allowed

N.Krishnakumar @ Unni v. G.Abraham

Kerala HC8 Feb 2012Crl.Rev.Pet/302/2012

Case brief

AI extract

What is this about?

High Court of Kerala revisited conviction in cheque bounce case. Confirmed conviction but set aside initial sentence. Ordered appellant to pay compensation within five months or undergo imprisonment. Directed second accused to pay fine.

What did the court decide?

Conviction confirmed; sentence of original imprisonment set aside; accused ordered to pay Rs. 4,43,590 compensation within five months or face three months imprisonment; second accused to pay Rs. 5,00

N.Krishnakumar @ Unni Vs G.Abraham — 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 8TH DAY OF FEBRUARY 2012/19TH MAGHA 1933

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CRRP.No. 302 of 2012 ()

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CRA.332/2010 OF ADDL. SESSIONS COURT, OTTAPALAM ST NO. 4723/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPPALAM

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REVISION PETITIONERS / APPELLANTS / ACCUSED :

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1. N.KRISHNAKUMAR @ UNNI

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CHIEF EXECUTIVE, KIRIDOM RELEASE OFFICE KRIPA COTTON HILL, THIRUVANANTHAPURAM 695 014.

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2. M/S. KIRIDOM RELEASE KRIPA COTTON HILL

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THIRUVANANTHAPURAM REPRESENTED BY ITS CHIEF EXECUTIVE

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N.KRISHNAKUMAR @ UNNI.

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BY ADV. SRI.K.P.BALAGOPAL

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RESPONDENTS / RESPONDENTS / COMPLAINANT & STATE :

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1. G.ABRAHAM

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S/O.C.A.GEORGE, PROPRIETOR,GEETHA THEATRE

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KULAPPULLY, SHORNUR

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REPRESENTED BY HIS POWER OF ATTORNEY AGENT C.VIJAYAKUMARAN

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S/O.LATE P.RAMANUNNI NAIR, CHIRAKARA SOURPARNIKA

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KAYILIYAD P.O, SHORNU 679 122.

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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.

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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 08-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.BHAVADASAN, J.

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---------------------------------------------------Crl.RP No.302 of 2012

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---------------------------------------------------Dated this the 8^th day of February 2012

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Order

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The accused were prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. They were found guilty. The first accused was convicted and sentenced to undergo simple imprisonment for three months. Both the accused were sentenced to pay a fine of Rs.10,000/- in default of payment of which, the accused shall undergo simple imprisonment for one month. Since it was brought to the notice of the court below that the civil suit filed for recovery of the amount covered by Ext.P1 cheque has been decreed, there was no direction to pay the compensation amount to the complainant. In appeal, the appellate court confirmed the conviction and sentence as ordered by the trial court.

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Crl.RP 302/12 2

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According to the complainant, the first

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accused is the Chief Executive and person in charge of the second accused establishment namely M/s.Kiridom Release. In order to discharge a debt due to the complainant, the first accused had issued Ext.P1 cheque for Rs.4,43,590/- in favour of the complainant. On presentation, the cheque bounced for want of funds in the account of the accused. The notice issued to the accused invoked no response. The amount remained unpaid and therefore, a complaint was taken on file.

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Cognizance of the offence was taken by the trial court and summons was issued to the accused. On appearance of the accused, the particulars of the offence were read out to him, to which, he pleaded not guilty. Evidence consists of the testimony of PW1 and documents marked as Exts.P1 to P7 from the side of the complainant. After close of the evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and

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Crl.RP 302/12

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maintained that he is innocent. The accused examined DW1 and had Ext.D1 marked.

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The trial court on an appreciation of the

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evidence, found the accused guilty. Accordingly, the conviction and sentence as already mentioned followed. In appeal, the lower appellate court set aside the conviction and sentence as ordered by the trial court and remanded the matter for fresh disposal for enabling the complainant to adduce additional evidence. Subsequent to the remand order, the complainant had Exts.P9 to P13 marked. It is seen from the judgment of the trial court that the accused was again questioned under Section 313 of Cr.P.C. on the additional evidence adduced by the complainant. He denied the incriminating circumstances brought out in evidence against him. The first accused contended that he was working as a film producer-cum-distributor from 1995 onwards and had business transaction with the complainant. The film of the accused - 'Milleneum Stars' was released in the theatre of the complainant at

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Crl.RP 302/12 4

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Kulappully. There was no sufficient collection for the movie

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and the accused sustained heavy loss. According to the accused, it is the usual practice in the film industry to adjust such loss towards the next film. The complainant demanded the accused to issue a cheque for clearing the account and assured that the cheque will not be presented. But, quite contrary to the assurance so given, the cheque was presented and it bounced for want of sufficient funds. However, the accused chose to adduce no evidence.

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On an appreciation of the evidence, the trial court came to the conclusion that the offence has been made out and accordingly convicted and sentenced the accused as already mentoned. The lower appellate court confirmed the conviction and sentence as ordered by the trial court.

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The learned counsel for the revision petitioner, at the time of admission of the revision petition, pointed out that Ext.P1 cheque was given only as a security and not to discharge any liability due to the

Crl.RP 302/12

complainant.

It is significant to notice that the accused has no case that Ext.P1 was a blank cheque issued to the complainant and the particulars were subsequently printed in it. By Exts.P12 and P13 judgment and decree, the suit filed by the complainant was decreed in his favour. It is also significant to notice that when the accused received statutory notice, they did not respond to the same. If, as a matter of fact, the accused had a case that Ext.P1 cheque was not issued by them as alleged, they would have immediately responded. Considering the evidence in the case, the trial court has come to the conclusion that the evidence is insufficient to prove that the cheque was issued as contended by the accused. It is not shown that the findings of the courts below are either perverse or unwarranted by the evidene on record. The conviction and sentence as ordered by the courts below, therefore, do not call for any interference under the revisional jurisdiction.

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Crl.RP 302/12

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Faced with the above situation, the learned counsel for the revision petitioner prayed to show some leniency regarding the sentence imposed and also for some time to pay the fine amount as ordered by the courts below.

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Considering the nature of the transaction and the willingness of the accused to pay the amount, it is felt that a lenient view can be taken regarding the sentence imposed.

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In the result, while confirming the conviction passed by the courts below for the offence under under Section 138 of the Negotiable Instruments Act, the sentence imposed on the first accused is set aside and he is sentenced to undergo simple imprisonment till the rising of the court and to pay Rs.4,43,590/- as compensation to the complainant within five months from today, failing which, he shall undergo simple imprisonment for three months and the second accused is directed to pay a fine of Rs.5,000/-. If the compensation amount as ordered

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Crl.RP 302/12

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above is paid, it shall be given credit to and adjusted towards the decree amount due under Ext.P12 to the

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complainant and paid over to him.

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The revision petition is disposed of as above.

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P.Bhavadasan, Judge

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sta

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Crl.RP 302/12 8

N.Krishnakumar @ Unni v. G.Abraham

Case brief

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N.Krishnakumar @ Unni v. G.Abraham

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