Dismissed

M.K.Shameer v. State of Kerala

Kerala HC22 May 2013Crl.Rev.Pet/732/2013

Case brief

AI extract

What is this about?

Hon. Justice K. Harilal dismissed the Criminal Revision Petition. The High Court held that the lower courts were correct in convicting the accused for cheating upon finding that he dishonestly induced the complainant to return sale documents by issuing a cheque on another person's account.

What did the court decide?

Revision Petition dismissed; conviction and modified sentence confirmed.

M.K.Shameer Vs State of Kerala — Cheating and Forgery | 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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WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935

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Crl.Rev.Pet.No. 732 of 2013 ()

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AGAINST THE JUDGMENT IN CRA 477/2011 of COURT OF SESSION, KOZHIKODE DIVISION AGAINST THE JUDGMENT IN CC 107/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY

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==================

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REVISION PETITIONER/APPELLANT/ACCUSED:

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M.K.SHAMEER, AGED 37 YEARS S/O. UMMER, AYANIKUNNUMMAL HOUSE, P.O. POONOOR, UNNIKULAM, KOZHIKODE.

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BY ADV. SRI.LUIZ GODWIN D COUTH

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RESPONDENTS/RESPONDENTS/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY S.I. OF POLICE THAMARASSERY THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HARILAL, J. --------------------------------------Crl.R.P.No. 732 OF 2013

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--------------------------------------Dated this the 22^nd day of May, 2013.

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The Revision Petitioner herein is the accused in C.C.No.107/2008 before the Judicial First Class Magistrate Court-I, Thamarassery as well as the appellant in Criminal Appeal No.477/2011 on the files of the Sessions Court, Kozhikode Division. Originally he was the 1^st accused and one Mujeeb Rahman was the 2^nd accused in C.C.No.203/2006. Later charge against him was split-up and re-filed as C.C.No.107/2008, since he was absconded. The offences alleged against him are under Sections 420 and 465 read with Section 120(b) IPC. The prosecution allegation is that on 30.03.1999, the Revision Petitioner herein availed a hire purchase loan of Rs.50,000/- for his vehicle bearing No.KL B 3742 from the de facto complainant's agent's office at Thamarassery on executing hire purchase agreement and the accused had defaulted the installments and after repeated demands by the de facto complainant, the Revision Petitioner had issued a cheque towards the outstanding loan

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Crl.R.P. No. 732/2013

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amount of Rs.1,30,000/- and promised that the cheque would be honoured on presentation. But when the de facto complainant presented the cheque for collection, it was dishonoured for the reason “drawer's signature diferred” and on enquiry, it was revealed that the Revision Petitioner signed and issued the cheque with knowledge that the said cheque belongs to Abdul Rahman, the 2^nd accused and the said cheque had been issued after conspiring with the 2^nd accused and thereby committed the offence punishable under Sections 420 and 465 read with Section 120(b) IPC. After trial, the learned Magistrate found the accused guilty of the offence under Section 420 alone and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for one month.

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Though he had preferred above appeal, the Appellate Court also confirmed the conviction; but modified the sentence. In supersession of the sentence imposed by the Trial Court, the Appellate Court sentenced him to undergo simple imprisonment till rising of the court and to pay Rs.1,30,000/- to the de facto complainant as compensation under section 357(3) Cr.P.C. and in default of payment of compensation to suffer simple

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Crl.R.P. No. 732/2013

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imprisonment for six months. This Revision Petition is filed challenging the concurrent findings of conviction and modified sentence imposed on the Revision Petitioner on various grounds.

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The learned counsel appearing for the Revision Petitioner submitted that no documentary evidence has been produced by the de facto complainant (PW2) to prove the handing over the sale agreement and loan clearance letter to the Revision Petitioner. So there is no dishonest intention on the side of the Revision Petitioner. The Trial Court ought to have held that there was nothing to implicate the Revision Petitioner for the offence alleged have been committed. The counsel further submits that the ingredients attracting the offence under Section 420 is not available in the facts of the case, even if prosecution case is admitted at its entirety. Thus conviction and sentence imposed thereunder are legally unsustainable.

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Going by the impugned judgment, it could be seen that the prosecution mainly relied on the evidence of PWs 1, 2 and 4 to prove the commission of the offence and to fix culpability of the accused. PW2 is the de facto complainant. He deposed that on 30.03.1999, the accused has availed a loan of Rs.50,000/from his institution for his vehicle on executing P5 hire purchase

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agreement. He further deposed that the Revision Petitioner defaulted the repayment of loan and finally in discharge of the debt, the Revision Petitioner had issued Ext.P1 cheque. It is the definite case of PW2 that the Revision petitioner along with the 2^nd accused approached his office on 30.11.2005 to settle the dues and issued Ext.P1 cheque. But it is proved by Ext.P8 ledger extract of the account of the 2^nd accused, Ext.P9 Cheque Return Register and Ext.P10 Specimen Signature Card that Ext.P1 cheque issued by the Revision Petitioner herein was a cheque drawn on the account of the said Mujeeb Rehman, the 2^nd accused. PW2 clearly deposed that he had given back the sale agreement and loan clearance letter at the time of closing the loan account by delivering Ext.P1 cheque by the accused. From the evidence of PW2, it is clear that the Revision Petitioner had induced him to deliver the loan clearance letter and also to return back the sale agreement by delivering Ext.P1 cheque which was dishonoured later on presentation for encashment. It indicates the dishonest intention of the accused to get the documents, by delivering Ext.P1 cheque drawn on the account of the 2^nd accused. The courts below concurrently found that the evidence of PW2 is truthful and trustworthy.

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The learned counsel appearing for the Revision Petitioner contended that there is no documentary evidence to show that PW2 had handed over the sale agreement and loan clearance letter. As rightly considered and found by the court below, it is true that though no documentary evidence has been produced, the evidence given by PW2 is so clear without any suspicion to arrive at a finding that with a dishonest intention, he delivered Ext.P1 cheque which was maintained in the account of another person, the 2^nd accused. As there is sufficient evidence to prove that the Revision Petitioner has induced PW2 to deliver the documents by giving a signed cheque towards the discharge of the liability and a false promise that it would be honoured on presentation knowing fully well that the cheque belongs to the 2^nd accused and it would not be honoured due to difference in signature. As rightly held by the court below, the said inducement made by the Revision Petitioner is a dishonest one falls within the ambit of offence punishable under Section 420 IPC.

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I do not find any illegality or impropriety in the findings of the court below or perversity in the appreciation of evidence from which the said findings are arrived. Considering the limited jurisdiction under Sections 397 and 401 of Cr.P.C., this Court is

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not inclined to re-appreciate the entire evidence once again, unless any kind of illegality or impropriety in the findings or perversity in the appreciation of evidence is pointed out. The Revision Petitioner miserably failed to do so. Consequently, I confirm the conviction entered and modified sentence imposed on the Revision Petitioner. The Revision Petition is devoid of merits.

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Resultantly, this Revision Petition is dismissed.

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Sd/K.HARILAL, JUDGE

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M.K.Shameer v. State of Kerala

Case brief

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M.K.Shameer v. State of Kerala

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