Dismissed

Fysal Eroth v. N.P.C. Aboobacker

Kerala HC3 Sept 2014Crl.Rev.Pet/1439/2014

Case brief

AI extract

What is this about?

The High Court of Kerala, in criminal revision, dismissed the appeal against conviction for cheque dishonour under Section 138 NI Act. The court found the evidence sufficient and the presumption under Section 139 not rebutted. While admitting no legal ground for interference, it granted the accused eight months to pay compensation.

What did the court decide?

Revision dismissed in limine; appellant granted eight months to pay compensation in lump sum or installments.

Fysal Eroth Vs N.P.C. Aboobacker — Cheque Dishonour | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.UBAID

¶4

WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936

¶5

Crl.Rev.Pet.No. 1439 of 2014 ()

¶6

AGAINST THE JUDGMENT IN CRL.A.NO. 808/2011 of ADDL.SESSIONS COURT (SPL.COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE DATED 14-02-2012

¶7

AGAINST THE JUDGMENT IN CC NO.398/2009 of J.M.F.C.-IV,KOZHIKODE DATED 29-11-2011

¶8

REVISION PETITIONER/APPELLANT/ACCUSED:

¶9

FYSAL EROTH, AGED 44 YEARS S/O.MOOSA HAJI, EROTH HOUSE, NADAPURAM P.O. KOZHIKODE DISTRICT.

¶10

BY ADV. SRI.ARUN MATHEW VADAKKAN

¶11

RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

¶12

N.P.C. ABOOBACKER, AGED 57 YEARS S/O.MOIDU, MADURAMBALATHIL HOUSE, KOVOOR MEDICAL COLLEGE P.O., KOZHIKODE DISTRICT, PIN-673008.

¶13

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

¶14

R1 BY ADV. SRI.R.SUDHISH R1 BY ADV. SMT.M.MANJU BY PUBLIC PROSECUTOR SRI.R.GITHESH

¶15

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶16

P.UBAID, J.

¶17

~~~~~~~~~~

¶18

Crl.R.P No.1439 of 2014

¶19

~~~~~~~~~~~

¶20

Dated this the 3^rd September, 2014

¶21

O R D E R

¶22

Aggrieved by the conviction and sentence under Section 138 of the Negotiable Instruments Act, the accused in C.C No.398 of 2009 before the Judicial First Class Magistrate Court-IV, Kozhikode has come up in revision. A cheque for 1,50,000/- drawn by him in favour of the₹ complainant was dishonoured due to insufficiency of funds. The complainant brought prosecution, when the revision petitioner failed to make payment on demand. He pleaded not guilty to the accusations in the trial court. The complainant examined himself and proved Exts.P1 to P6 documents. The complainant also proved compliance of all statutory requirements. Accepting the evidence adduced by the complainant, the trial court found him guilty. On conviction, he was sentenced to undergo imprisonment till rising of the court and was also directed to pay a compensation of 1,90,000/- to the complainant under₹ Section 357 (3) of Cr.P.C, inclusive of the interest accrued.

¶23

Crl.R.P No.1439 of 2014

¶24

¶25

The revision petitioner brought appeal before the Court of Session, Kozhikode, but the learned Special Additional Sessions Judge, Kozhikode confirmed the conviction and sentence, and accordingly dismissed the appeal.

¶26

On hearing both sides on admission, I find no

¶27

ground or reason to admit the revision to files. On a perusal of the case records, I find that the complainant has well proved the case on facts. He has proved the transaction in which the revision petitioner incurred a debt of 1,50,000/-₹ and also execution of Ext.P1 cheque in discharge of the debt. Bouncing due to insufficiency of funds is proved by Ext.P2 memo. The revision petitioner has no case that he had sufficient funds in his account to honour the cheque, or that it was bounced on some other ground. Ext.P3 statutory notice was sent in time by the complainant and the complaint was also filed in time. The evidence given on facts by the complainant stands not discredited, and the presumption thus available to him under Section 139 of the Negotiable Instruments Act stands not rebutted in any manner. The accused did not adduce any evidence in defence to probabilise the defence case. Thus, I find that the

¶28

Crl.R.P No.1439 of 2014

¶29

¶30

complainant has well proved the offence punishable under Section 138 of the negotiable Instruments Act with all the necessary elements and ingredients including compliance of the statutory requirements for initiating prosecution. I find no reason for interference in revision on the ground of any any illegality or irregularity in the conviction made by the courts below.

¶31

The learned counsel for the revision petitioner made a request to grant some reasonable time to the revision petitioner to make payment of the compensation. Time for ten months sought by the revision petitioner was opposed by the other side. Considering the facts and circumstances, including the amount involved, and the amount to be paid inclusive of interest, I feel that time for eight months can be granted and payment can be made by the revision petitioner in lump or in five equal installments, within eight months. However, the first payment will have to be made as ordered on Crl.M.A No.5128 of 2014.

¶32

In the result, this revision petition is dismissed in limine, without being admitted to files. However, the revision petitioner is granted time for eight months' from

¶33

Crl.R.P No.1439 of 2014

¶34

¶35

this date a to surrender before the trial court to serve out the sentence till rising of the court, and make payment of the compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the sentence and recover the amount of compensation, or enforce the default sentence. Payment of compensation can be made by the revision petitioner either in lump or in five equal installments within a period of eight months. The 1^st payment shall be made within time as ordered on Crl.M.A No.5128 of 2014. In case payment is made directly, the revision petitioner will have to obtain receipts and produce the receipts before the trial court on surrender, to have payment of compensation recorded in the trial court. The amount, if any, deposited by the revision petitioner in the court below can be withdrawn by the complainant towards the amount due.

¶36

¶37

Sd/P.UBAID JUDGE /True copy/ P.S to Judge

Fysal Eroth v. N.P.C. Aboobacker

Case brief

What is this about?

What did the court decide?

Fysal Eroth v. N.P.C. Aboobacker

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

Coram

Case details

Similar cases

Lissy Vs State of Kerala

Anfar Vs State of Kerala

Biju Vs the State of Kerala

P.v.C.Mujeeb Rahiman Vs Muhammed P.P

C. Ramesan Vs Salim.S.

Chandrasekharan Vs Palode Co-Operative Agricultural