Partly allowed

M/S.Polynsis Immigration v. State of Kerala

Kerala HC24 May 2013Crl.Rev.Pet/1012/2013

Case brief

AI extract

What is this about?

In a criminal revision petition against an appellate order, this Single Judge after accepting the defence counsel’s submission regarding pre-deposit of the fine amount which was not noticed by the appellate court, set aside the sentence portion of the impugned judgment and confirmed the convictions.

What did the court decide?

Conviction confirmed; sentence portion set aside. Deposit of Rs.1,01,255 treated as fine payment and awarded to complainant. Second appellant’s imprisonment set aside.

M/S.Polynsis Immigration Vs State of Kerala — Cheque Dishonour | Kerala HC (2013)

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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 K.HARILAL

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FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935

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Crl.Rev.Pet.No. 1012 of 2013

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AGAINST THE ORDER/JUDGMENT IN CRA 654/2012 of ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM DATED 06-04-2013

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AGAINST THE ORDER/JUDGMENT IN CC 803/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI DATED 22-09-2012

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REVISION PETITIONER(S)/APPELLANTS/ACCUSED:

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1. M/S.POLYNSIS IMMIGRATION CONSULTANTS(P) LTD, OPP.BSNL BHAVAN, KALATHIPARAMBU ROAD, KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR-JOY STEPHEN.

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2. JOY STEPEHN, AGED 49 YEARS

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S/O.P.J.STEPHEN, 2777D, PONNETH SOUTH ROAD, KADAVANTHRA, MANAGING DIRECTOR

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M/S.POLYNSIS IMMIGRATION CONSULTANTS PVT. LTD.,

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OPP.BSNL BHAVAN, KALATHIPARAMBU ROAD, KOCHI.

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BY ADVS.SRI.A.T.ANILKUMAR

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SMT.V.SHYLAJA

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RESPONDENTS/RESPONDENTS/COMPLAINANT(S):

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1. M/S.CHEMMANNUR ACADEMY AND SYSTEMS PVT. LTD., 2ND FLOOR, DOOR NO.95, D.D., MILESTONE, KADAVANTHRA, PIN: 682 020., KOCHI, REP. BY DIRECTOR CHERIAN C. KARIPPAPPARAMBIL.

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2. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN: 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 24-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HARILAL, J.

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= = = = = = = = Crl.R.P.No.1012 of 2013 = = = = ==== = = = = = =

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Dated this the 24^th day of May, 2013

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O R D E R

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The Revision petitioners are the accused in C.C.No.803/2011 of the Judicial First Class Magistrate Court -I, Kochi as well as appellants in Criminal Appeal No.654/2012 on the files of the Additional Sessions Judge (Adhoc-I), Ernakulam. They were prosecuted for the offence punishable u/s 138 of the Negotiable Instruments Act, on a complaint filed by the 1^st respondent herein. After trial, the learned Magistrate found the Revision petitioners guilty of the offence and convicted thereunder. The second accused was sentenced to undergo simple imprisonment for a period of three months and the first accused was directed to pay a fine of Rs.1,01,255/- (Rupees One lakh one thousand two hundred and fifty five only) and in default, the 2^nd accused shall undergo simple imprisonment for a period

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Crl.R.P.No.1012 of 2013 2

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of one month. Though the Revision petitioner had challenged the conviction and sentence in appeal, the appellate court also confirmed the conviction but modified the sentence. Sentence against the 2^nd Revision petitioner was modified to simple imprisonment till rising of the court and the 1^st Revision petitioner to pay a fine of Rs.1,01,255/(Rupees One lakh one thousand two hundred and fifty five only). in default of payment of fine, the 1^st Revision petitioner represented by 2^nd Revision petitioner shall undergo simple imprisonment for one month. If the fine amount is realised, it could be paid to the complainant as compensation u/s 357(1)(b) of Cr.P.C. This judgment is under challenge in this Revision petition.

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At the outset itself, Sri.A.T.Anil kumar, the learned counsel for the Revision petitioner submits that the challenge in this Revision petition is confined to sentence only. The counsel submits that even before the passing of impugned order under challenge the Revision petitioners had deposited entire amount directed to be paid as fine by the trial court vide receipt No.555631 but due to

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Crl.R.P.No.1012 of 2013

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an inadvertent omission, the counsel for the Revision petitioners who appeared in appeal could not bring the said fact before the notice of the court. Therefore, without noticing the said fact the appellate court passed impugned judgment sentencing the second Revision petitioner to undergo till rising of the court and directing the first Revision petitioner to deposit fine. The counsel further submits that in the above circumstance, the sentencing part of the impugned order needs further clarification.

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The counsel further submits that the second Revision petitioner is employed in Canada and that fact also could not be brought to the notice of the appellate court at the time of passing of the judgment. The counsel payed for modifying the substantive sentence of imprisonment, in view of the fact that even before the passing of the impugned judgment, entire amount was deposited before the trial court. The learned counsel produced copy of the receipt issued by the Magistrate court, evidencing payment of Rs.1,01,255/- on 15/10/2012. I find some force in the argument advanced by the counsel for the Revision

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Crl.R.P.No.1012 of 2013

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petitioners.

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Therefore, I also confirm the conviction and set aside the sentence portion the impugned judgment. The sentence imposed on the Revision petitioners stands modified as given below:

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i) The substantive sentence of simple imprisonment imposed on the 2^nd Revision petitioner will stand set aside.

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ii) The amount that had been deposited vide receipt No.AC555631 dated 15/10/2012 of the Judicial First Class Magistrate Court, Kochi shall be deemed to be payment of fine u/s 138 of the N.I.Act and the same shall be given to the 1^st respondent as compensation u/s 357(1)(b) of the Cr.P.C.

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This Revision petition is disposed of accordingly.

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K.HARILAL, JUDGE.

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Stu

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//True copy//

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P.A to Judge

M/S.Polynsis Immigration v. State of Kerala

Case brief

What is this about?

What did the court decide?

M/S.Polynsis Immigration v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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