Partly allowed

K.Nirmala Kumari v. T.C.Mohandas

Kerala HC3 Feb 2012Crl.Rev.Pet/325/2012

Case brief

AI extract

What is this about?

In a revision against conviction under Section 138 NI Act, the court allowed the petitioner three months to pay compensation instead of immediate execution of sentence, suspending the warrant for the same period.

What did the court decide?

Granted three months to pay compensation; execution of warrant kept in abeyance for three months; default clause to apply if payment not made by the deadline.

K.Nirmala Kumari Vs T.C.Mohandas — 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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FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933

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CRRP.No. 325 of 2012

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IN CRA.850/2008 of I ADL.D.C., TRIVANDRUM IN ST.2135/2006 of J.M.F.C.-V, NEYYATTINKARA

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REVISION PETITIONER(S)/APPELLANT-ACCUSED:

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K.NIRMALA KUMARI

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D/O.KAMALABAI, ASHA BHAVAN, VETTUKADU VIRALI, UCHAKKADA, KULATHOOR VILLAGE.

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BY ADV. SRI.R.T.PRADEEP

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COMPLAINANT(S):

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1. T.C.MOHANDAS

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S/O.THOMSON, VALSAKH, MUKKOLA VENGANNOOR P.O. - 695 523

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2. STATE OF KERALA

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REPRESENTED BY PUBLIC PROSECUTOR

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HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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BY PUBLIC PROSECUTOR SRI.T.R.RAJESH

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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stu

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P. BHAVADASAN, J.

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- - - - Crl.R.P. No. 325 of 2012

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- - - - Dated this the 3^rd day of February, 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.1,05,000/-, and in default, to undergo simple imprisonment for a further period of two months. It was also directed that if the fine amount is realised, the same shall be given to the complainant under Section 357(1) Cr.P.C. In appeal, the appellate court confirmed the conviction, but modified the sentence as follows:

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“(1) For the offence u/s. 138 of the Negotiable Instruments Act, the accused is directed to undergo imprisonment till the rising of court.

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Crl.R.P.325/2012.

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(2) The accused is directed to pay a compensation of Rs.1,10,000/- to the complainant u/s. 357(3) of Criminal Procedure Code and in default of payment of compensation to suffer simple imprisonment for six months.

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(3) The accused shall appear before the court below on 15.1.2012 to serve the modified sentence hereby imposed, failing which the lower court shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed.”

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According to the complainant, the accused had

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borrowed a sum of Rs.1,00,000/- from him and in order to

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discharge the said debt issued Ext.P1 cheque, which on presentation bounced for want of funds in the account of the accused. Statutory notice issued to the accused failed to 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

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trial court. On appearance of the accused, particulars of

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Crl.R.P.325/2012.

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the offence were read out to the accused, to which he pleaded not guilty and claimed to be tried. Complainant examined himself as P.W.1 and had Exts.P1 to P6 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 filed a statement in writing stating all her defence. Her case was that during 2001 she had borrowed a sum of Rs.35,000/- from the complainant and she repaid Rs.30,000/- in several instalments and on 25.5.2005 the complainant came to the house of the accused and made a commotion demanding the balance Rs.5,000/- with interest. Thereafter, they came to her house on several occasions and managed to obtain a signed blank cheque and they filled it up and presented for encashment. She examined herself as D.W.1 and had Exts.D1 and D2 marked.

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Crl.R.P.325/2012.

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On an appreciation of the evidence, both the courts below came to the conclusion that the offence has been made out and the defence set up cannot be accepted. Accordingly, she was found guilty. The conviction and sentence as already mentioned followed.

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When the matter was taken up, learned counsel appearing for the revision petitioner pointed out that he does not wish to address this court on the merits of the matter and prays that the petitioner may be given sometime to make the payment in order to avoid the default clause.

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Considering the facts and circumstances of the case and also the fact that the petitioner is ready and willing to pay the amount as ordered by the lower appellate court, the petitioner is granted three months from today to pay the compensation as ordered by the lower appellate court, failing which, the default clause shall take effect.

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Crl.R.P.325/2012.

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Execution of warrant, if any, issued shall be kept in abeyance for a period of three months from today.

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The revision petition is disposed of as above.

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P. BHAVADASAN, JUDGE

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sb.

K.Nirmala Kumari v. T.C.Mohandas

Case brief

What is this about?

What did the court decide?

K.Nirmala Kumari v. T.C.Mohandas

Case brief

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