Partly allowed

Omanakuttan v. Girish Kumar

Kerala HC13 Jun 2012Crl.Rev.Pet/336/2012

Case brief

AI extract

What is this about?

Revision petition against conviction under Section 138 of the Negotiable Instruments Act for cheque dishonour. Court confirmed conviction but modified sentence from six months imprisonment to a fine of Rs. 1,75,000 payable within four months, with a default term of three months imprisonment.

What did the court decide?

Conviction confirmed. Sentence modified to fine of Rs. 1,75,000 payable within four months as compensation, with three months default imprisonment if not paid.

Omanakuttan Vs Girish Kumar — 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 C.T.RAVIKUMAR

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WEDNESDAY, THE 13TH DAY OF JUNE 2012/23RD JYAISHTA 1934

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Crl.Rev.Pet.No. 336 of 2012 ()

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(AGAINST THE JUDGMENT DATED 18.8.2010 IN CRA.571/2008 of II ADDL.SESSIONS COURT II,KOLLAM IN CC.1/2008 DATED 4.12.2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT -IV, PUNALUR

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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OMANAKUTTAN S/O.GOPAL PILLAI, KANNANKARA PUTHEN VEEDU PADINJARE VAYALA, ITTIVA VILLAGE KOTTARAKKARA TALUK, KOLLAM.

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BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

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COMPLAINANT(S)/COMPLAINANT AND STATE:

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GIRISH KUMAR GEETHA BHAVANAM, KURAVANTHEIR, KARUKONE.P.O. KOLLAM.

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THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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R1 BY ADV. SRI.S.MOHAMMED ALRAFI R2 BY PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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al.

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C.T. RAVIKUMAR, J. =========================== C RL. R.P. NO. 336/2012

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=========================== Dated this the 13^th day of June 2012

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O R D E R

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The accused in C.C. No. 1/2008 on the file of the Judicial First Class Magistrate Court-IV, Punalur is the revision petitioner. This revision petition has been filed against the judgment dated 18-8-2010 in Criminal Appeal No. 571/08 of the Court of the II Additional Sessions Judge, Kollam. There is the concurrent verdict of conviction under section 138 of the Negotiable Instruments Act against the revision petitioner. The sentence imposed by the trial court was modified by the appellate court.

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The case against the revision petitioner is that he

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issued a cheque to the 2^nd respondent drawn on Kollam District Co-operative bank, Kottakkal branch for Rs. 1,50,000/- in discharge of a debt and it was dishonoured when presented for collection on

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C RL. R.P. NO. 336/2012 #2#

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the ground of insufficient funds. After complying with all the statutory formalities, the defacto complainant, the 1^st respondent filed the complaint against the revision petitioner. It was taken on file as C.C.No. 1/08. From the side of the prosecution, the complainant was examined as PW1 and Exts. P1 to P5 were marked. There is no oral or documentary evidence on the side of the defence. After appreciating the evidence on record, the trial court found that all the ingredients to attract the offence under Section 138 are proved against the revision petitioner herein and as such the revision petitioner was guilty under Section 138 of the Negotiable Instruments Act. Resultantly, he was convicted and sentenced to undergo simple imprisonment for a period of six months and also to pay Rs. 1,55,000/-. The revision petitioner took up the matter in appeal as Criminal Appeal No. 571/2008 and the same was dismissed and the conviction and sentence were confirmed. A re-appreciation or re-appraisal of evidence is not required while exercising the revisional jurisdiction unless the revision petitioner brings out a case of palpable, perverse appreciation of evidence.

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C RL. R.P. NO. 336/2012 #3#

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I have heard the learned Counsel for the petitioner, the

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learned counsel for the 2^nd respondent/complainant and the learned public prosecutor.

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The courts below have concurrently found that the cheque in question was validly drawn by the revision petitioner in the name of the 2^nd respondent and that there was strict compliance with the requirements under clauses (a) and (b) of the proviso to section 138 of the Negotiable Instruments Act and further that the revision petitioner had failed to make the payment within 15 days of receipt of statutory notice. The defence set up by the revision petitioner was also carefully considered and rejected by the courts below which entering the conviction on a proper evaluation of the oral and documentary evidence. Since the revision petitioner had failed to bring out a case warranting exercise of revisional power on account of any error, illegality and impropriety a discussion on merits is uncalled for. An

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C RL. R.P. NO. 336/2012 #4#

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appreciation of the evidence is called for only if a case of perverse appreciation of evidence is made out.

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In the said circumstances, the conviction recorded

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concurrently against the revision petitioner under Section 138 of the Negotiable Instruments Act is confirmed.

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Now, what survives for consideration is the legality of the sentence imposed against the revision petitioner. It is permissible

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for this court to slap a default sentence of imprisonment while awarding compensation under Section 357 (3) of the Code of Criminal Procedure in view of the decision of the Hon'ble Apex Court in Vijayan Vs. Sadanandan reported in (2009) 6 SCC 652.

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The learned Counsel for the petitioner submitted that, in

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fact, half of the amount imposed as compensation was already paid to the 1^st respondent and the learned counsel for the 1^st respondent would

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C RL. R.P. NO. 336/2012 #5#

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endorse the same. The learned counsel for the petitioner further submitted that the balance amount of compensation may be permitted to be paid in full within four months' time. The learned counsel for the 1^st respondent submitted that the 1^st respondent has no objection in granting such time.

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In the totality of the said circumstances, I am of the view that a sentence of fine with default sentence will be suffice to meet the ends of justice. Accordingly, the sentence is modified and the petitioner is sentenced under Section 138 of the Negotiable Instruments Act to pay a fine of Rs. 1,75,000/-. The said fine shall be paid as compensation under Section 357 (1) of the Code of Criminal Procedure. The revision petitioner is permitted either to deposit the said fine amount before the court below or pay it directly to the complainant within a period of four months from today and produce a memo to that effect before the trial court. If the revision petitioner fails to effect deposit of the said amount in the manner mentioned above,

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C RL. R.P. NO. 336/2012 #6#

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within the above stipulated time, he shall suffer simple imprisonment

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for three months by way of default sentence. Resultantly, this revision

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petition is disposed of confirming the conviction and modifying the sentence as above.

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Needless to say that, in view of the order, warrant, if

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any, pending against the revision petitioner will stand recalled.

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Sd/-

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C.T. RAVIKUMAR JUDGE

kvr/

/True Copy/

P.A. to Judge

C RL. R.P. NO. 336/2012 #7#

Omanakuttan v. Girish Kumar

Case brief

What is this about?

What did the court decide?

Omanakuttan v. Girish Kumar

Case brief

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What did the court decide?

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