Partly allowed

Santhosh Kumar v. Sajad Sahir

Kerala HC13 Dec 2017Crl.Rev.Pet/1077/2016

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court of Kerala challenged the conviction for cheque dishonour under Section 138 NI Act. The Court found no illegality in the conviction but exercised its discretion to reduce the imprisonment term to till the rising of the court while maintaining the fine. Granting the accused two months additional time to pay the fine voluntarily.

What did the court decide?

Conviction confirmed; sentence reduced to imprisonment till rising of the court; fine paid to complainant as compensation; two months time granted to remit fine voluntarily.

Santhosh Kumar Vs Sajad Sahir — Cheque Dishonour | Kerala HC (2017)

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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 P.UBAID

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WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939

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Crl.Rev.Pet.No. 1077 of 2016 ()

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IN CRA 119/2013 of I ADL.D.C., TRIVANDRUM DATED 28-05-2016

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IN ST 59/2011 of J.M.F.C.-IV, NEDUMANGAD DATED 22-02-2013

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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SANTHOSH KUMAR

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S/O. SIVATHANU ACHARI, KAIRALI SCHOOL JUNCTION, NETTACHIRA, NEDUMANGAD P.O, THIRUVANANTHAPURAM

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BY ADVS.SRI.SAIJO HASSAN

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SRI.BENOJ C AUGUSTIN SRI.VISHNU BHUVANENDRAN SRI.U.M.HASSAN

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RESPONDENT(S)/RESPONDENT/COMPLAINANT:

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1. SAJAD SAHIR S/O.SALIM,SABITHA BHAVAN, KANYAKULANGARA, KONCHIRA P.O 695 615 THIRUVANANTHAPURAM

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

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BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P.UBAID, J.

Crl.R.P. No. 1077 of 2016

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Dated this the 13^th day of December, 2017

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O R D E R

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The revision petitioner herein challenges the conviction and sentence against him under Section 138 of the Negotiable Instruments Act in S.T.No. 59 of 2011 of the Judicial First Class Magistrate Court-IV, Nedumangad. The said prosecution was initiated by the first respondent herein on the allegation that a cheque issued by the accused in his favour for 35,000/-, in discharge of the amount borrowed by₹ him, was bounced due to insufficiency of funds, and in spite of statutory notice, the accused failed to make payment of the cheque amount.

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The accused pleaded not guilty when the substance of the accusation was read over and explained to him. The complainant examined himself as PW1, and proved Exts.P1 to P4 documents in the trial court. The accused did not adduced any evidence in defence.

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On an appreciation of the evidence, the trial

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Crl.R.P. No. 1077 of 2016

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court found the accused guilty. On conviction he was sentenced to undergo simple imprisonment for three months, and to pay a fine of 35,000/-. The cheque amount₹ is 35,000/-. Though he preferred appeal before the Court of₹ Session, Thiruvananthapuram, as Crl.A.No. 119 of 2013, the accused could not succeed. In appeal, the learned First Additional Sessions Judge, Thiruvananthapuram, confirmed the conviction, but modified and reduced the substantive sentence to simple imprisonment for one month. The fine sentence was maintained. Now the accused is before this Court challenging the legality and propriety of the conviction and sentence.

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On a perusal of the materials, and on hearing

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the learned counsel for the petitioner, I find no illegality or irregularity or impropriety in the conviction made by the courts below concurrently. The complainant has proved all the procedural requirements for a prosecution, including statutory notice. Everything was found in favour of the

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Crl.R.P. No. 1077 of 2016

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complainant by the trial court, and also the appellate court. The complainant has given evidence proving the execution of the cheque, and also the transaction of borrowal. It is proved by evidence that the cheque in question was issued by the accused in discharge of the amount due from him to the complainant. He also proved compliance of the statutory requirements, including statutory notice. The accused has no case that he had funds in his account to honour the cheque. Thus all the ingredients of the offence are well proved by the complainant. I find no reason for interference in the conviction made by the courts below. The factual aspects cannot be re-examined or re-evaluated in revision.

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In the particular facts and circumstances of the case, I feel it appropriate to modify and reduce the sentence further to the minimum possible under the law. The complainant has not so far initiated civil action for the cheque amount. The amount of fine imposed by the trial

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Crl.R.P. No. 1077 of 2016

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court is only the cheque amount, and nothing more.

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In the result, the conviction against the revision petitioner under Section 138 of the NI Act is confirmed, and the revision petition is dismissed in limine . But the sentence imposed by the court below will stand modified and reduced to imprisonment till rising of the court. The amount of fine, if realized, will be paid to the complainant as compensation under Section 357(i)(b) Cr.P.C.. However, on the request made by the learned counsel, the revision petitioner is granted time for two months to remit the amount of fine voluntarily. On the eve of expiry of the period of two months, the revision petitioner will have to surrender before the trial court to serve out the sentence, and to make payment of the fine, on failure of which, steps shall be taken by the trial court to enforce the sentence, and realize the fine, or to enforce the default sentence.

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P.UBAID

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ds 15.12.2017

Santhosh Kumar v. Sajad Sahir

Case brief

What is this about?

What did the court decide?

Santhosh Kumar v. Sajad Sahir

Case brief

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What did the court decide?

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