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Abdul Kareem v. T.K.Fathima

Kerala HC7 Feb 2012Crl.Rev.Pet/347/2012

Case brief

AI extract

What is this about?

This court confirmed the conviction of the accused for the offence under Section 138 of the Negotiable Instruments Act regarding a bounced cheque. Finding the original sentence disproportionate, the court set it aside and directed the accused to pay the compensation and undergo detention until the rising of the court.

What did the court decide?

Conviction confirmed. Sentence set aside and re-directed: imprisonment till rising of the court; pay Rs.1,00,000 compensation within three months. Further simple imprisonment for two months in default

Abdul Kareem Vs T.K.Fathima — 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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TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933

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CRRP.No. 347 of 2012 ()

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(CRA.470/2010 OF ADDL. DISTRICT COURT, OTTAPALAM ST.186/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI)

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REVISION PETITIONER/APPELLANT/ACCUSED:

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ABDUL KAREEM, AGED 41 YEARS,S/O.KUNHAPPU HAJI PULAKKATTUTHODI HOUSE, (PO) KOLATHUR (VIA) PERINTHALMANNA, MALAPPURAM DISTRICT.

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BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

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RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:

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1. T.K.FATHIMA AGED 42 YEARS,W/O.ABOOBACKER MOULAVI THALLIKUNNATH HOUSE,P.O.MUTHUITHALA(VIA),PATTAMBI OTTAPALAM TALUK,PALAKKAD DISTRICT,PIN-679303.

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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.

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R2 BY GOVERNMENT PLEADER SRI. T.R. RAJESH

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Scl.

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P.BHAVADASAN, J.

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Crl. R.P. No.347 of 2012

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Dated this the 7^th 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 Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to suffer simple imprisonment for a period of 2 months and to pay a compensation of Rs.1,00,000/- to the complainant under Section 357(3) of Cr.P.C. and in default to undergo simple imprisonment for a further period of 15 days. In appeal, the appellate Court confirmed the conviction and sentence.

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According to the complainant, the accused had borrowed a sum of Rs.1,00,000/- and issued Ext.P1 cheque to discharge the said liability. The cheque on presentation bounced for want of funds. Statutory notice issued to the accused, was returned unclaimed. Since the amount remained unpaid, the complaint was laid.

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Cognizance of the offence was taken and summons was issued to the accused. On appearance of the accused, all

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Crl. R.P. No.347 of 2012

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formalities were complied with. Particulars of the offence were read out to him to which he pleaded not guilty and claimed to be tried. The respondent therefore examined himself as PW1 and Exts. P1 to P5 were marked.

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After the close of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C wherein he denied all the incriminating evidence brought out in evidence against him and maintained that he is innocent. He chose to adduce no evidence. The courts below came to the conclusion that the complainant was successful in establishing that Ext.P1 cheque was issued by the accused to discharge the debt due to the complainant and accordingly the accused was found guilty. Conviction and sentence as already mentioned followed.

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Learned counsel for the revision petitioner contended that the courts below have not properly considered the evidence of PW1 which shows considerable inconsistency with regard to the issuance of the cheque and the signature of the accused. Of course, there are certain inconsistencies and contradictions in

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Crl. R.P. No.347 of 2012

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the evidence of PW1 regarding the entries made in the cheque. In one portion, she has stated that the cheque was brought filled up and signed before her and another portion she has stated that the cheque was written and signed in her presence. There is no dispute about genuineness of the signature on Ext.P1. When the accused admitted his signature, it was up to him to explain the circumstance under which he was forced to issue a signed blank cheque leaf. A mere contention will not support the case of the accused unless it is proved that the writings and signature on it have been made by two different persons. So, in the light of the evidence adduced by PW1, one can conclude that Ext.P1 was drawn by the accused. No satisfactory explanation was given by the accused as to how the cheque came into the possession of the complainant. Both the Courts below found the contentions of the accused to be untenable for want of evidence in that regard. Contention based on want of statutory notice and jurisdiction were also repelled by the courts below. Accordingly, the trial Court convicted and sentenced the accused as already stated. In appeal, the conviction and sentence were confirmed.

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Crl. R.P. No.347 of 2012

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It is contended by the learned counsel for the revision petitioner that no statutory notice was served on the revision petitioner. Equally baseless is the contention based on want of statutory notice. Endorsement shows it was returned as “not claimed”. Both the courts below have considered the evidence in detail and found accused guilty. It is not shown that the findings are perverse or unwarranted by the evidence on record.

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Faced with the above situation, the learned counsel for revision petitioner pointed out that the sentence awarded is very harsh and disproportionate to the offence and such a harsh sentence was not warranted. He also prayed that some time may be given to the revision petitioner to pay the compensation amount.

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There seems to be considerable force in the above submission. It is true that the contention were found to be false and offence was proved. But circumstance do not justify such a harsh sentence.

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In the result, while confirming the conviction of the accused for the offence under Sec. 138 of the Negotiable

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Crl. R.P. No.347 of 2012

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Instruments Act, the sentence imposed by the courts below are set aside and instead the accused is directed to suffer imprisonment till the rising of the court and pay a compensation of Rs.1,00,000/- to PW1 within a period of three months from today and in default of payment of which to suffer simple imprisonment for further a period of two months.

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P. BHAVADASAN, JUDGE

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Scl.

Abdul Kareem v. T.K.Fathima

Case brief

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Abdul Kareem v. T.K.Fathima

Case brief

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