Disposed

Haridas v. Varghese Paul

Kerala HC23 Feb 2012Crl.Rev.Pet/470/2012

Case brief

AI extract

What is this about?

In this criminal revision petition concerning a cheque dishonour case under Section 138 NI Act, the High Court of Kerala confirmed the conviction and sentence but granted the accused six months' time to pay the imposed fine amount, failing which the default imprisonment clause would take effect.

What did the court decide?

Granted six months' time from the date of judgment to pay the fine amount of Rs.3,60,000/-; otherwise the default clause will take effect.

Haridas Vs Varghese Paul — 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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THURSDAY, THE 23RD DAY OF FEBRUARY 2012/4TH PHALGUNA 1933

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Crl.Rev.Pet.No. 470 of 2012 ()

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(JUDGMENT DATED 28.11.2011 IN CRA.303/2011 of ADDL.DISTRICT & SESSIONS JUDGE (ADHOC-III), N.PARAVUR JUDGMENT DATED 30.05.2011 IN CC.143/2009 of JUDICIAL FIRST CLASS MAGISTRATE- II, PERUMBAVOOR)

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REVISION PETITIONER(S)/APPELLANT/ACCUSED :

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HARIDAS,

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NADUKUDIPARAMBIL HOUSE, BADHANIKURISU BHAGAM , VALAYANCHIRANGARA P.O.

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BY ADVS.DR.K.P.SATHEESAN

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SRI.P.MOHANDAS (ERNAKULAM) SRI.M.R.JAYAPRASAD SRI.MATHEW SUNNY

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SRI.ANOOP.V.NAIR

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RESPONDENTS/1ST RESPONDENT/COMPLAINANT :

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1. VARGHESE PAUL, KAKKATTUKUDY HOUSE, B.O.C.ROAD, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE - 683 542.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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R2 BY SMT.SEENA RAMAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMV

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P.BHAVADASAN, J.

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---------------------------------------------------Crl.RP No.470 of 2012

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Dated this the 23^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 and was, therefore, convicted and sentenced to undergo simple imprisonment for three months and also to pay a compensation of Rs.3,60,000/- to the complainant with a default clause of simple imprisonment for three months. In appeal, the appellate court confirmed the conviction but limited the substantive sentence to one of imprisonment for one day till the rising of the court and that instead of compensation, the accused was sentenced to pay a fine of Rs.3,60,000/with a default clause of simple imprisonment for three months. It was also ordered that if the fine amount is realised, the same shall be given to the complainant as compensation.

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Crl.RP 470/12 2

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The short case put forward by the complainant is that the accused had borrowed an amount of Rs.50,000/- on 15.1.2005 and Rs.2,00,000/- on 20.10.2006 from him on executing promissory notes for the said sums in favour of the complainant. The accused did not repay the amounts. He caused to issue a lawyer notice to the accused and thereafter, the accused gave him Ext.P3 cheque for Rs.3,60,000/- towards full and final settlement of the principal amounts borrowed by him, together with interest. On presentation, the cheque was returned with the endorsement “funds insufficient”. Statutory notice issued to the accused invoked no response. The amount remained unpaid and therefore, a complaint was filed.

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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 and claimed to be tried. Evidence consists of the testimony of

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Crl.RP 470/12

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PW1 and documents marked as Exts.P1 to P7 from the side of the complainant. After close of the complainant's evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. However, he chose to adduce no evidence.

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The trial court on an appreciation of the evidence, came to the conclusion that the complainant had succeeded in establishing the case against the accused and accordingly, the conviction and sentence as already mentioned followed. In appeal, though the conviction was confirmed, the sentence was modified.

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Today when the matter was taken up for admission, the learned counsel for the revision petitioner pointed out that he is not addressing this court on the merits of the case, but he will be satisfied if some time is granted to pay the fine amount as ordered by the lower appellate court so as to ward off the default clause as imposed by the lower appellate court. However, in order to

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Crl.RP 470/12 4

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ensure that there is no illegality or impropriety in the judgments of the courts below, this court perused the judgments passed by the courts below.

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The complainant was examined as PW1.

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The case of the accused was that even according to the complainant, he had borrowed only Rs.2,50,000/- from the complainant, but the cheque was for a higher amount and therefore, the complaint is not maintainable. However, PW1 's claim was that Rs.2,50,000/- was received by the accused and he failed to repay the amount with interest thereon. The promissory notes and the cheque executed by the accused have been produced. There is nothing to show the discharge of the debt due to the complainant. The definite case of the complainant was that the cheque was issued for the principal amount and interest thereon. Moreover, except for denying the

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Crl.RP 470/12 5

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circumstances, no evidence was adduced by the accused. One has also to notice the fact that the accused chose to remain silent on receipt of the statutory notice issued by the complainant which shows his culpability. It was in the above facts and circumstances that the courts below came to the conclusion that the accused is guilty of the offence alleged against him. Therefore, he was rightly found guilty of the offence under Section 138 of the NI Act and therefore, the conviction is only to be upheld.

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Now, what remains to be considered is the prayer made by the learned counsel for the revision petitioner to grant some time for payment of the fine amount to ward off the default clause imposed by the lower appellate court. In view of the willingness expressed by the revision petitioner to pay the fine amount and also taking into consideration the amount

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Crl.RP 470/12

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involved, it is felt that some time can be granted to him to pay the fine amount, in the interest of justice. Accordingly, while confirming the conviction and sentence as imposed by the lower appellate court, the revision petitioner is granted six months' time from today to pay the fine amount as imposed by the lower appellate court, failing which the default clause as imposed by the lower appellate court will take effect. If the fine amount is paid or realised, it shall be paid to the complainant as compensation.

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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 470/12 7

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Crl.RP 470/12 8

Haridas v. Varghese Paul

Case brief

What is this about?

What did the court decide?

Haridas v. Varghese Paul

Case brief

What is this about?

What did the court decide?

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