Allowed

Molly.a v. Sree Gokulam Chits & Finance Co.Pvt. Ltd.

Kerala HC1 Nov 2017Crl.Rev.Pet/1237/2017

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal revision petition, confirming the conviction and sentence under Section 138 of the Negotiable Instruments Act. The court granted the accused four months time to pay the fine to balance the interests of both parties.

What did the court decide?

Fine of Rs.98,700 confirmed with 4 months time to pay; coercive proceedings deferred until 17.3.2018.

Molly.a Vs Sree Gokulam Chits & Finance Co.Pvt. Ltd. — 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 ALEXANDER THOMAS

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WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939

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Crl.Rev.Pet.No. 1237 of 2017 ()

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CRA.NO. 120/2017 of 1ST ADDITIONAL SESSIONS COURT,KOZHIKODE .

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CC.NO. 1512/2015 of JUDICIAL FIRST CLASS MAGISTRATE COURT, (SPL.COURT) FOR N.I ACT CASES, KOZHIKODE.

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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MOLLY.A,

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C/O.JAMES,AGED 57 YEARS,AAMBAZHAKKADE HOUSE, KUNNATH THAZHAM VAYAL,NADAKKAVU.P.O,CALICUT-673011.

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BY ADVS.SRI.NIRMAL. S

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SMT.VEENA HARI

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:

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1. SREE GOKULAM CHITS & FINANCE CO.PVT. LTD., NO.66,ARCOT ROAD,CHENNAI-24,REP.BY ITS ASST.BUSINESSMANAGER K.SASIDHARAN,AGED 57 YEARS, S/O.RAGHAVAN NAIR,REGIONAL OFFICE, VANDIPETTA,NADAKKAVU-673001.

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2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031.

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R1 BY ADV. N.SUDHA R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTEY

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.R.P.No.1237 Of 2017

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Dated this the 1st day of November, 2017.

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O R D E R

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The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.1512/2015 on the file of the Special Judicial First Class Magistrate Court (N.I. Act Cases), Kozhikode, instituted on the basis of a complaint filed by R-1 herein. The trial court as per the impugned judgment rendered on 6.3.2017 had convicted the petitioner for the above said offence and sentenced her to pay a fine of Rs.98,700/- and in default thereof the accused was sentenced to undergo simple imprisonment for a period of two months. The fine amount realised from the accused was ordered to be paid as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Crl.A.No.120/2017 before the Sessions Court, Kozhikode. The appellate Sessions Court concerned (Court of Additional Sessions Judge-I, Kozhikode), as per the impugned judgment dated 30.8.2017 had upheld the conviction and the sentence of fine and thereby dismissed the appeal. It is aggrieved by

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Crl.R.P.No.1237 Of 2017

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these verdicts, that the revision petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C.

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Heard Smt.Veena Hari, learned counsel appearing for the revision petitioner-accused and Smt.N.Sudha, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

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The brief of the case of the complainant is that the complainant is a company conducting business of chit and that the petitioner had stood as guarantor in a chit subscribed by one Sri.Ravindran with the complainant-Chit company. The chit was auctioned in favour of the said subscriber and that the said subscriber had thereafter defaulted payment of the further dues and when notice was issued to the subscriber and the guarantor, the petitioner, in her capacity as guarantor had executed the instant Ext.P-4 cheque dated 5.9.2014 for Rs.1,03,700/- in discharge of the liability that subsisted on that day and the cheque when presented resulted in dishonour and after issuing statutory demand notice under Sec.138 proviso (b) of the N.I.Act and following other procedural formalities, the complainant has instituted the instant complaint, which led to the conduct of the trial.

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Crl.R.P.No.1237 Of 2017

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The power of attorney holder, who was the Assistant Business Manager of the company at the relevant time, has been examined as PW-1 and the official, who was the Arrears Manager and who had direct knowledge about the transaction at the relevant time, has been examined as PW-2. Exts.P-1 to P-8 documents have been marked on behalf of the prosecution. The defence has marked Ext.D-1 chit passbook, who has not adduced any oral evidence.

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PWs 1& 2 have broadly deposed in tune with the contents of the complaint. It has been brought out in evidence that one Sri.Ravindran, has subscribed to a chit for which sala amount is Rs.3 lakhs, conducted by the complainant company and commencement of the chit was on 3.1.2013 and termination of the chit was on 18.3.2014 and that the subscriber had auctioned the chit and received the chit amount by way of cheque dated 13.1.2013 and that at the time of receiving the auctioned chit amount, the subscriber and two guarantors, one of which was the petitioner had executed and signed Ext.P-3 agreement dated 12.1.2013. The prosecution witnesses have also given evidence that the total outstanding liability owed by the subscriber as on 18.8.2014 was Rs.1,03,756/-, which consists of principal amount of Rs.96,288/- and interest of Rs.7,518/- and that the

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Crl.R.P.No.1237 Of 2017

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petitioner had issued Ext.P-4 cheque dated 5.9.2014 for the above said amount, etc. PW-1 has also stated that the Assistant Legal Officer (Smt.K.K.Haripriya) and Arrears Manager were present at the time of issuance of cheque by the accused, etc. PW-2, who is the Arrears Manager, has also given evidence in that regard. The basic defence set up by the accused is to the effect that she was constrained to give a blank signed cheque to the complainant-company at the time of entering into the guarantor transaction. Further that the petitioner subscribed to a chit run by the same company in another transaction and she was already a defaulter in that chit and that therefore, it is very unlikely that she would have been a guarantor in respect of the transaction. The trial court has also held that the accused has not produced any documents to prove that she is a defaulter in the chit subscribed by her at that time and that Ext.D-1 chit passbook relating to her chit subscription shows that it commenced on 3.1.2013 and she had paid the 1st instalment of Rs.10,000/- on 2.1.2013 and further that she was not a defaulter in the chit as on 12.1.2013 and Ext.D-1 would further go to show that the accused was prompt in paying monthly instalments and she paid amount in that chit on 4.8.2014 and that therefore she was not a defaulter either at the time of Ext.P-3 chit

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Crl.R.P.No.1237 Of 2017

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agreement dated 12.1.2013 or on 18.8.2014 on which day the liability was computed or as on 5.9.2014 (date of issuance of the cheque), etc. Further no attempt has been made to in any manner object the correctness and veracity of Ext.P-3 chit agreement dated 12.1.2013 and it was conclusively established before the court below that the petitioner was the guarantor for the chit transaction to which one Ravindran was the subscriber. Further, the courts below also found that no credible and clinching circumstances have been let out in evidence to show that any blank cheque was taken from the accused at the relevant time or that the same has been misused. It is in the light of these findings of facts the courts below have held that the petitioner is liable to be convicted for the offence under Sec.138 of the N.I. Act. These findings of facts cannot be said to be perverse or unreasonable and therefore, this Court is of the view that this Court will not be justified to interfere in a matter like this by taking recourse to the revisional powers conferred on this Court. No circumstances have been brought out in evidence to indicate that the said concurrent findings of facts are in any manner illegal or perverse, etc. In these circumstances, it is not proper for this Court to interfere with the said findings of facts. As regards the sentence, the trial court has imposed a fine of Rs.98,700/-. The cheque

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Crl.R.P.No.1237 Of 2017

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amount is Rs.1,03,756/- and the subscriber has already remitted an amount of Rs.5,000/- on 18.10.2016 and therefore the said amount was adjusted and the fine amount imposed is only Rs.98,700/- The default sentence clause is 2 months' simple imprisonment. Accordingly, the said sentence of fine and default sentence cannot be said to be excessive or disproportionate.

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Smt.Veena Hari, learned counsel appearing for the

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petitioner submits that in case this Court is so inclined to confirm the impugned conviction and sentence, then this Court may grant 6 months' time to pay the said amount. Smt.N.Sudha, learned counsel appearing for R-1 (complainant) submits that time exceeding not more than 4 months may be given in this case as the amount due has been pending for quite long time. Having regard to the facts and circumstances of the case, this Court is inclined to grant time up to 4 months. Accordingly, the following orders and directions are issued:

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(i) The impugned conviction and sentence of fine of Rs.98,700/and default sentence of simple imprisonment for 2 months., imposed on the petitioner for the offence under Sec.138 of the N.I. Act are confirmed.

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(ii) The petitioner is given time by 4 months from 15.11.2017 to pay the fine amount of Rs.98,700/- directly to the complainant company. Upon receiving such payment, the complainant shall issue necessary receipt evidencing such payment so as to enable

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Crl.R.P.No.1237 Of 2017

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the accused to produce it before the trial court to satisfy the said court about the payment. Any such amounts directly paid by the accused to the complainant shall be treated as if those amounts are paid as fine and then disbursed to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C.

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(iii) The petitioner shall appear before the trial court at 11:00 a.m. on 17.3.2018 to satisfy the said court about payment of total fine/compensation amount of Rs.98,700/- and on default of the petitioner to pay the above said amount, she will have to undergo simple imprisonment for 2 months.

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(iv) Until 17.3.2018, all further coercive proceedings taken against the petitioner in execution of the impugned sentence will stand deferred.

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(v) On default of the petitioner either to appear before the court below on 17.3.2018 or to make payment as aforesaid, then the trial court will be at liberty to proceed against the petitioner in accordance with law.

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The Registry will forward a copy of this order to the trial court for necessary information. With these observations and directions, the Crl.R.P. Stands finally disposed of.

Sd/-

ALEXANDER THOMAS,

Bkn/-

// True copy //

P.A to Judge.

Molly.a v. Sree Gokulam Chits & Finance Co.Pvt. Ltd.

Case brief

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What did the court decide?

Molly.a v. Sree Gokulam Chits & Finance Co.Pvt. Ltd.

Case brief

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