Allowed

K.C.Paulose v. K.K.Kunju

Kerala HC27 Feb 2012Crl.Rev.Pet/499/2012

Case brief

AI extract

What is this about?

The High Court disposed of a criminal revision petition in a cheque bounce case. While upholding the conviction, the court revised the sentence, directing the accused to pay compensation within three months to avoid immediate imprisonment.

What did the court decide?

Conviction upheld; sentence modified to imprisonment till the rising of the court with a direction to pay compensation of Rs.50,000 within three months, otherwise four months' simple imprisonment.

K.C.Paulose Vs K.K.Kunju — 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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MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933

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Crl.Rev.Pet.No. 499 of 2012 ()

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CRA. NO.338/2010 of ADDL.DISTRICT & SESSIONS COURT (ADHOC-III),N.PARAVUR CC. NO. 179/2008 of J.M.F.M. - II, PERUMBAVOOR

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REVISION PETITIONER/APPELLANT/ACCUSED:

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K.C.PAULOSE, AGED 53 YEARS, S/O.CHACKO, KAROTTUPURAM HOUSE, KAIPATTOOR P.O., KALADY.

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BY ADV. SRI.IEANS.C.CHAMAKKALA

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :

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1. K.K.KUNJU, AGED 62 YEARS,

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S/O.KUNJU VAREETH, MANAGING PARTNER

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M/S.MARATHONE PROCURED TREADS, KALADY-683 574.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-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 27-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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DST

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P. BHAVADASAN, J.

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- - - - Crl.R.P. No. 499 of 2012

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- - - - Dated this the 27^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 the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.50,000/under Section 357(3) of Cr.P.C. with a default clause of simple imprisonment for three months. In appeal, the appellate court confirmed the conviction and sentence.

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According to the complainant, he is the Managing Partner of M/s. Marathone Procure Treads, Kalady. The firm is engaged in the manufacture of tread rubber. It is alleged that on 3.5.2008 the accused purchased rubber products worth Rs.3,04,200/- and paid Rs.2,54,200/- by cash and issued a cheque for Rs.50,000/-. The cheque on presentation bounced for want of funds in

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Crl.R.P.499/2012.

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the account of the accused. Statutory notice issued to the accused did not 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 trial court. On appearance of the accused, particulars of 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. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. In defence D.W.1 was examined and Exts.D1 to D3 series were marked. Both the courts below on an independent evaluation of the evidence came to the conclusion that Ext.P1 cheque was infact issued by the accused in discharge of a liability due to the complainant and the

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Crl.R.P.499/2012. 3

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offence under Section 138 is clearly made out and accordingly convicted and sentenced as already mentioned followed.

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At the time when the revision petition was taken up for admission, 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 only requests this court to grant sometime to pay the compensation so as to ward off default sentence. It is also pointed out that some leniency may be shown with regard to the substantive sentence also.

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Even though the above submission is made, this court perused the judgments of the courts below to ensure that there is no illegality, irregularity or impropriety in the orders of the courts below.

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The complainant was examined as P.W.1 and he speaks in terms of the complaint and about the issuance

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Crl.R.P.499/2012.

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of the cheque. He speaks about the presentation of the cheque and its return for want of funds in the account of the accused.

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The accused contended that he was conducting

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business in Coimbatore and that during 1999 to 2007 he had purchased tread rubber from the complainant and that in 2006 he had given a cheque for Rs.50,000/- as security and thereafter he did not have any transaction with the complainant and the cheque now presented is the said cheque and there is no amount due to the complainant. The accused examined himself as D.W.1 and he marked the relevant exhibits.

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Both the courts below have noticed that the business transaction with the complainant is admitted by the accused. Both the courts have noticed that the accused had not produced the books of accounts to show that what he claims is true. At the time of evidence, he had a case

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Crl.R.P.499/2012.

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that the cheque was given as security to the son of the complainant. But he had no such case in Ext.P6 reply that the cheque was given as security to the son of the complainant. There was no suggestion to P.W.1 that the cheque was one infact issued to the son of the complainant as security.

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Both the courts below found the evidence of P.W.1 to be acceptable and also that the documents produced by the complainant are sufficient to come to the conclusion that the offence has been made out. The findings of the courts below are based on appreciation of evidence in the case and the findings are shown to be neither perverse nor unwarranted calling for interference under the revisional jurisdiction. No grounds are made out to interfere with the order passed by the courts below.

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However, there is some substance in the submission of the learned counsel for the revision petitioner

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Crl.R.P.499/2012. 6

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that the sentence imposed is on the high side and disproportionate to the offence. Considering the facts and circumstances of the case and also that the only prayer made before this court is for time for payment of compensation amount and for leniency with regard to the sentence, it is felt that some leniency can be shown to the petitioner.

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In the result, while confirming the conviction of the accused for the offence under Section 138 of the N.I.Act, and sentence imposed by the lower appellate court is set aside and the petitioner is directed to undergo imprisonment till the rising of the court and to pay Rs.50,000/- as compensation within three months from today, failing which, the petitioner has to undergo simple imprisonment for four months.

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Crl.R.P.499/2012.

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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.C.Paulose v. K.K.Kunju

Case brief

What is this about?

What did the court decide?

K.C.Paulose v. K.K.Kunju

Case brief

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