High Court dismissed criminal revision questioning conviction and sentence for cheque dishonour under Section 138 NI Act, affirming lower courts found offence established.
Revision petition dismissed; conviction and sentence of courts below affirmed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 28TH DAY OF FEBRUARY 2012/9TH PHALGUNA 1933
Crl.Rev.Pet.No. 879 of 2005 ( )
CRA.69/2002 of ADDL.SESSIONS JUDGE, PATHANAMTHITTA CC.344/1999 of C.J.M.PATHANAMTHITTA
REVISION PETITIONER/APPELLANT/ACCUSED:
MONCEY CHERIAN, S/O.CHERIAN VARGHESE, MAMMOOTTIL HOUSE, KAIPPATTOOR MURI KAIPPATTOOR P.O. VALLICODE VILLAGE.
BY ADV. SRI.BINDU SREEKUMAR
RESPONDENT(S)/COMPLAINANT AND STATE.:
1. GEORGE DANIEL, PUNNAKKATTU HOUSE, POOZHIKKADU, KADASSANADU P.O.
2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.
BY SRI.SUNIL JACOB JOSE
BY PUBLIC PROCECUTOR SRI.T.R.RAJESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RK
P.BHAVADASAN, J.
---------------------------------------------------Crl.RP No.879 of 2005
---------------------------------------------------Dated this the 28th day of February 2012
Order
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 suffer rigorous imprisonment for one year and to pay a fine of Rs.50,000/-, in default of payment of which, he shall suffer simple imprisonment for three months. In appeal, the appellate court confirmed the conviction, but modified the sentence to one of simple imprisonment for six months and to pay a sum of Rs.50,000/- as fine, in default of payment of which he has to suffer simple imprisonment for three months.
had borrowed from him a sum of Rs.2,00,000/- on 18.8.1998, Rs.4,000/- on 8.12.1998 and Rs.2,50,000/- on 10.02.1999 and in discharge of the said debts along with
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the agreed rate of interest, issued a cheque for Rs.5,00,000/-, which, on presentation, was returned for want of funds in the account of the accused. To the statutory notice issued to the accused, there was no response. Since the amount remained unpaid, a complaint was filed.
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3
offence has been made out and accordingly convicted and sentenced him as already mentioned. In appeal, though the conviction was confirmed, the sentence was modified.
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relatives and there were financial transactions between the
two. Records indicate that the cheque issued by the accused was returned for want of funds in the account of the accused. It cannot be disputed that the statutory notice was issued to the accused and it was received by him. There is nothing to show that the accused had sent a reply to the statutory notice so received by him. It was under these circumstances that the court below had taken cognizance of the offence.
not disputed that the signature on Ext.P1 is that of the accused and that it is drawn on the account maintained by him. There is no suggestion to PW1 that the particulars in the cheque were filled up by him. In fact, the only contention that seems to have been seriously argued before the court below is regarding the statutory notice. According to the accused, the complainant had notice of dishonour of the cheque on 6.5.1999 and the statutory
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notice was issued only on 24.5.1999 which is out of time going by the provisions of the Negotiable Instruments Act. In support of his contentions, the accused had produced documents. The above contention was considered by both the courts below in considerable detail and have found that Exts.P2 and P3 will show that the complainant had received information regarding dishonour of the cheque only on 14.5.1999 and the statutory notice is dated 24.5.1999. There is nothing to indicate that the intimation was wrongly procured by him for the purpose of issuing statutory notice. Apart from the above, the fact remains that even after getting the statutory notice, the accused did not choose to reply or respond to the notice. If he had a case that the cheque was not issued by him, he would have availed of his first opportunity to put forward his case. It was the above circumstances, which persuaded the courts below to come to the conclusion that the offence has been made out. The findings are based on appreciation of evidence and there is nothing to show that the findings are
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either perverse or unwarranted by the evidence on record, warranting interference under the revisional jurisdiction. This court finds no reason to interfere with the conviction and sentence passed by the courts below. The revision petition is without any merits and it is accordingly dismissed.
P.Bhavadasan, Judge
sta
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1 issue framed by the court
Whether the finding on no.reply to statutory notice was perverse warranting interference under the revisional jurisdiction.
1 provisions across 1 enactments
MONCEY CHERIAN
GEORGE DANIEL
STATE OF KERALA
P.BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
