Partly allowed

Sreedharan v. M/S.Kalpaka Hosiery

Kerala HC7 Nov 2017Crl.Rev.Pet/2849/2004

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a criminal revision petition regarding a cheque dishonour case. While confirming the conviction, the court reduced the substantive sentence to imprisonment till the rising of the court. The petitioner was directed to pay double the cheque amount as compensation. Directions were issued to ensure proper notice to the complainant before disbursement. Conviction wa

What did the court decide?

Conviction confirmed; sentence reduced to imprisonment till the rising of the court; Appellant directed to pay double the cheque amount as compensation; Appeal partly allowed.

Sreedharan Vs M/S.Kalpaka Hosiery — 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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TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939

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Crl.Rev.Pet.No. 2849 of 2004 (A)

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CRA.155/2002 of SESSIONS COURT,KOZHIKODE ST.762/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT-V,KOZHIKODE

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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SREEDHARAN, S/O. APPU, PROPRIETOR, M/S. PEOPLES FABRICS, CHAVAKKAD, THRISSUR DISTRICT.

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BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA

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RESPONDENT(S)/RESPONDENT/COMPLAINANT/STATE:

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1. M/S. KALPAKA HOSIERY, KADALUNDI, KOZHIKODE DISTRICT, REPRESENTED BY ITS PARTNER, K.K. REVEENDRAN, S/O. VELAYUDHAN NAMBIAR.

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2. STATE OF KERALA,

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

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R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.R.P.No.2849 Of 2004

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Dated this the 7th 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 S.T.No.762/1998 on the file of the Judicial First Class Magistrate Court-V, Kozhikode, instituted on the basis of a complaint filed by R-1 herein. Ext.P-2 dishonoured cheque dated 20.11.1997 is for Rs.13,860/-. The trial court as per the impugned judgment rendered on 22.3.2002 had convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for a period of three months. Aggrieved thereby, the petitioner has preferred Crl.A.No.155/2002 before the Sessions Court, Kozhikode. The appellate Sessions Court, as per the impugned judgment dated 21.8.2004 had upheld the conviction and modified and reduced the substantive sentence to simple imprisonment for 7 days and to pay compensation of Rs.14,000/- to the complainant under Sec.357(3) of the Cr.P.C. and in default thereof to undergo simple imprisonment for 45 days. It is aggrieved by these verdicts, that the

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Crl.R.P.No.2849 Of 2004

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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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The Revision Petition was filed as early as on 3.11.2004. The Revision Petition came up for admission on 4.11.2004 on which day this Court has admitted the Revision Petition and has ordered issuance of notice to the respondent. This Court has also passed interim order in Crl.M.A.No.13012/2004 in this Criminal Revision Petition directing that execution of the sentence in this case will stand suspended and bail granted on condition that the petitioner executes a bond for Rs.7,500/- with two solvent sureties each for the like sum to the satisfaction of the trial court and subject to further condition that the petitioner deposits the entire cheque amount of Rs.13,860/- before the trial court within one month. The trial court has now furnished a report dated 6.11.2017 intimating the Registry of this Court that an amount of Rs.13,860/- has already been deposited by the petitioner on 1.12.2004 before the trial court in compliance with the above said interim order. Further it is seen from the endorsement of the Registry dated 18.10.2016 that notice sent to R-1 on 6.11.2004 with hearing date 2.12.2004 taken through Circle Inspector of Police, Kozhikode Town, was returned unserved with the endorsement “shop was closed”. Accordingly, on 27.10.2016 notice was taken out to R-1 through Sub

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Crl.R.P.No.2849 Of 2004

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Inspector of Police, Kadalundy by speed post with hearing date 11.11.2016. On 14.11.2016, this Court has directed the Sub Inspector of Police to furnish the address of the 1st respondent and since no report has been filed by him, the said officer was directed to appear in person. Accordingly notice was issued to the said police officer. Later, this Court as per order dated 15.12.2016 had dispensed with the personal appearance of that officer. Thereafter, the petitioner has not taken any steps to properly serve notice on R-1 (complainant) till date.

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Sri.P.Vijayabhanu, learned Senior Counsel, instructed by Smt.Mitha Sudheendran, learned counsel appearing for the petitioner, submits on the basis of instructions from the petitioner that the petitioner is not challenging the legality and correctness of the impugned conviction and this Court may take a lenient view and may reduce the substantive sentence and may direct the petitioner to pay compensation of twice the cheque amount of Rs.13,860/- in terms of Sec.357(3) of the Cr.P.C, etc. Since the petitioner has not cared to properly effect service of notice on R-1 till date, after the expiry of such a long time. Such conduct on the part of the petitioner would amount to grave abuse of the process of the court. This Court could have easily dismissed the Revision Petition solely on the ground of non-prosecution. Since the petitioner has volunteered to pay compensation of double the

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Crl.R.P.No.2849 Of 2004

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cheque amount to the complainant and since he has already deposited the cheque amount on 1.12.2004 in compliance with this Court's interim order dated 4.11.2004, the said plea made by the petitioner could be considered.

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PP will ensure that the Inspector of Police of the area concerned will conduct an effective and proper enquiry and to ascertain the present whereabouts and correct present address of the 1st respondent, partnership firm or of its partner, K.K.Raveendran, through whom the complaint is filed and a report in that regard stating the correct address should be furnished by that officer to the trial court concerned (Judicial First Class Magistrate Court-V, Kozhikode), through the Assistant Public Prosecutor attached to that court. The trial court will thereafter give notice of intimation to the 1st respondent in that address for receiving the deposit amount as well as the balance compensation amount yet to be remitted. The learned Prosecutor is requested to forward a copy of this order to the Inspector of Police of the area concerned as well as District Police Chief for effective compliance of these directions.

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Accordingly, the following orders and directions are issued:

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Crl.R.P.No.2849 Of 2004

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(i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I. Act will stand confirmed.

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(ii) The substantive sentence of simple imprisonment of 7 days will stand reduced as imprisonment till the rising of the court.

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(iii) In supersession of the orders passed by the courts below, it is ordered that the petitioner shall pay compensation amount of Rs.27,720/(twice the cheque amount of Rs.13,860/-) to the complainant under Sec.357(3) of the Cr.P.C. The said amount shall be disbursed by the trial court to the complainant after issuing notice of intimation in that regard to the complainant to receive the said amount. The amount of Rs.13,860/- already deposited by the petitioner could be deducted from the total compensation amount of Rs.27,720/-. The petitioner is given 6 weeks' time to remit the balance compensation amount of Rs.27,720/- before the trial court.

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(iv) The petitioner shall personally appear before the trial court at 11:00 a.m on any day on or before 6.1.2018 to receive the sentence of imprisonment till the rising of the court and to pay the balance compensation amount of Rs.13,800/-. On receiving such amount, the trial court should ensure that such amount is forthwith released to the complainant after issuing notice of intimation in that regard.

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(v) On default of the petitioner to pay the above said compensation amount, he will have to suffer simple imprisonment for a period of one month.

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(vi) Until 6.1.2018, all further coercive proceedings taken against the petitioner in execution of the impugned sentence in this case will stand deferred.

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(vii) On default of the petitioner either to appear before the court below on 6.1.2018 or to make payment as abovesaid, the trial court will be at liberty to proceed against the petitioner in accordance with law.

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Registry will forward copies of this order to the trial court as well

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as R-1. With these observations and directions, the Crl.R.P stands

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finally disposed of.

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bkn/-

Sreedharan v. M/S.Kalpaka Hosiery

Case brief

What is this about?

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Sreedharan v. M/S.Kalpaka Hosiery

Case brief

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