Disposed

C.M.Johnson @ Johney v. O.T.Ramachandran

Kerala HC24 Oct 2014Crl.Rev.Pet/717/2006

Case brief

AI extract

What is this about?

High Court of Kerala disposed of a criminal revision petition challenging conviction and sentence for cheque dishonour under Section 138 NI Act. The Court upheld the conviction but mitigated the sentence by granting the accused two months to pay compensation, while retaining the option for default imprisonment.

What did the court decide?

Petitioner granted two months to pay Rs.16,000 compensation; conviction upheld; sentence modified to include conditional imprisonment.

C.M.Johnson @ Johney Vs O.T.Ramachandran — Cheque Dishonour | Kerala HC (2014)

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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 OCTOBER 2014/2ND KARTHIKA, 1936

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Crl.Rev.Pet.No. 717 of 2006 (D )

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CRL.A 265/2004 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CC 143/2003 of J.F.C.M.COURT-I, MANANTHAVADY

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REVISION PETITIONER(S)/APPELLANT/ACCUSED.:

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C.M.JOHNSON @ JOHNY, S/O. MATHEW, CHEMBANTHARA HOUSE, KOOLIVAYAL, CHERUKATTOOR P.O., MANANTHAVADY TALUK.

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BY ADVS.SRI.KRISHNA PRASAD. S SRI.C.K.RAFEEK

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE.:

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1. O.T.RAMACHANDRAN, S/O. KUNJIKRISHNAN NAIR, RAM NIVAS HOUSE, CHERUKATTOOR P.O. MANANTHAVADY TALUK.

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2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. SRI.ANEESH JOSEPH R2 BY PUBLIC PROSECUTOR SRI. JIBU P. THOMAS

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OKB

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K.HARILAL, J

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Crl.R.P. No.717 of 2006

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 24^th day of October, 2014

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ORDER

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This Revision Petition is filed challenging the concurrent findings of conviction entered and the sentence imposed on the Revision Petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No.265/04 on the files of the court of the Additional Sessions Judge (Ad hoc)- II, Kalpetta. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.143/03 on the files of the Judicial First Class Magistrate's Court-I, Mananthavady. According to the impugned judgment, the Revision Petitioner was sentenced to undergo simple imprisonment for one day till rising of the court and to pay to the complainant Rs.16,000/- as compensation under Section 357(3) of the Cr.P.C. and in default to undergo simple imprisonment for two months.

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It is the case of the complainant that the accused borrowed an amount of Rs.27,000/- on 2-8-2002 promising to repay the amount within one month. When the accused failed to

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Crl.R.P.717/06 :2:

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repay the amount as promised, mediators and friends intervened and the accused agreed to remit the said amount in the Panamaram Service Co-operative Bank Ltd. But he remitted Rs.11,000/- only in the bank. So the mediators again intervened and on mediation the accused has drawn and issued Ext.P1 cheque for Rs.16,000/- in favour of the complainant. When the cheque was presented for encashment, the same was dishonoured and returned for want of sufficient funds. Though he had caused to issue a lawyer's notice, the accused did not send a reply nor did he pay off the cheque amount. Thus, he has committed the offence punishable under Section 138 of the N.I. Act.

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The case of the accused in defence is that he borrowed only Rs.10,000/- from the complainant and he was given only Rs.9,000/- after deducting Rs.1000/- as advance. As per Ext.D1 to D3 he had remitted in the bank account of the complainant a total amount of Rs.11,000/- and hence he had paid the entire amount. After appreciating the evidence on record, the learned Magistrate found that the complainant has successfully discharged the initial burden of proving the execution and issuance of the cheque. But though the accused had pleaded discharge, he miserably failed to rebut the presumption under

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Crl.R.P.717/06 :3:

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Sections 139 and 118(a) of the N.I. Act which stood in favour of the revision petitioner.

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Going by the judgment under challenge, it is seen that the accused has set up a defence contention on Ext.D1 to D3 receipts dated 4-10-2002, 7-10-2002 and 18-10-02 respectively. Ext.P1 cheque was dated 30-10-2002 and the same was presented for collection in the bank on 3-4-2003. In Ext.P6 reply notice dated 2-5-2003 the accused had stated that if the borrowed amount was not repaid by him within the cheque date, the complainant can present the cheque for Rs.16,000/-. So it has come out in evidence that the accused issued Ext.P1 post dated cheque for Rs.16,000/-. From Exts.D1 to D3 receipts it can be seen that he had paid Rs.11,000/- and the last remittance was on 18-10-2002. But the complainant issued Ext.P4 notice on 9-4-2003. Therefore, it could be reasonably presumed that Exts.D1 to D3 are not payments covered under Ext.P1 cheque. In the complaint itself, the complainant has stated that the borrowal of Rs.27,000/- and repayment of Rs.11,000/- are evidenced by Exts.D1 to D3. Therefore, Exts.D1 to D3 can only be a payment to an amount due under Ext.P1 cheque. In this analysis, I find that there is no illegality or impropriety in the concurrent findings of conviction.

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Crl.R.P.717/06 :4:

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At last, the learned counsel for the Revision Petitioner confined his challenge to sentence only. The sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence. He further submits that the Revision Petitioner is willing to pay the compensation as ordered by the court below; but he is unable to raise the said amount forthwith due to paucity of funds. But he is ready to pay the compensation within three months.

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The Supreme Court, in the decision in Kaushalya Devi Massand Vs. Roopkishore (AIR 2011 SC 2566), held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in Vijayan Vs. Baby (2011(4) KLT 355) , Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.

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Having regard to the nature and gravity of the offence,

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in the light of the decisions quoted above and submission made

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Crl.R.P.717/06 :5:

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at the Bar, expressing willingness to pay the compensation within three months, the revision petitioner is given two months time to pay the compensation. Consequently, this Revision Petition is liable to be disposed of subject to the following terms:

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i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court.

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ii. The Revision Petitioner shall pay a compensation of Rs.16,000/- (Rupees Sixteen thousand only) to the 2^nd respondent/complainant within a period of two months from today.

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iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 26-12-2014 with sufficient proof to show payment of compensation.

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iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months.

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The Criminal Revision Petition is disposed of accordingly.

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Sd/- ( K.HARILAL, JUDGE)

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okb.

C.M.Johnson @ Johney v. O.T.Ramachandran

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C.M.Johnson @ Johney v. O.T.Ramachandran

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