Partly allowed

V.P.Abdul Salam v. State of Kerala

Kerala HC20 Jun 2017Crl.Rev.Pet/309/2017

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Kerala confirmed the conviction for cheque dishonour but modified the fine to match the cheque amount, granting the accused six months to pay the fine directly to the complainant while deferring coercive steps.

What did the court decide?

Conviction confirmed; fine reduced to cheque amount (Rs.2,86,932); six months' time granted for payment to complainant; coercive steps deferred.

V.P.Abdul Salam Vs State of Kerala — 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 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939

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Crl.Rev.Pet.No. 309 of 2017

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CC 53/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURTI,KOZHIKODE

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CRA 186/2013 OF SESSIONS COURT, KOZHIKODE

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---------

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REVISION PETITIONER/APPELLANT/ACCUSED:

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V.P.ABDUL SALAM,

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S/O.HASSANKUTTY,AGED 43 YEARS, SOLIDARITY, MOONNIYOOR P.O.,

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MALAPPURAM DISTRICT.

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BY ADV. SRI.M.R.NANDAKUMAR

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RESPONDENT(S)/RESPONDENTS STATE & COMPLAINANT:

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1.STATE OF KERALA,

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REP. BY PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA 682 031.

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2.SREEGOKULAM CHITS & FINANCE COMPANY LIMITED, NO.66, ARCOT ROAD, CHENNAI 600 024.

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R1 BY PUBLIC PROSECUTOR SRI JESTIN MATHEW

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R2 BY ADV. SRI.K.SIVAKUMAR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.V.

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ALEXANDER THOMAS, J.

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Crl.R.P.No.309 of 2017

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Dated this the 20th day of June, 2017.

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The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.53/2011 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, instituted on the basis of a complaint filed by R-2 herein. The trial court as per the impugned judgment rendered on 18.2.2013, had convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for a period of three months and to pay a sum of Rs.3.52 lakhs to be paid to the complainant as compensation under Sec.357(1) of the Cr.P.C., and in default thereof the accused was sentenced to undergo simple imprisonment for a further period of three months. Aggrieved thereby, the petitioner has preferred Crl.A.No.186/2013 before the Sessions Court, Kozhikode. The appellate court concerned [Court of Additional Sessions Judge-I, Kozhikode], as per the impugned judgment dated 30.5.2014 had upheld the conviction and set aside the substantive sentence and sentenced the accused to pay a fine of Rs.3,85,880/- and in default of payment of fine the accused was

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Crl.R.P.No.309 of 2017

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sentenced to undergo simple imprisonment for a period of three months and the fine amount realised was ordered to be paid to the complainant as compensation under Sec.357(1) of the Cr.P.C. It is aggrieved by these verdicts, that the 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 Sri.M.R.Nandakumar, learned counsel appearing for the revision petitioner, Sri.K.Sivakumar, learned counsel appearing for R-2 and Sri.Jestin Mathew, learned Prosecutor appearing for R-1.

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The gist of the prosecution case is that towards discharge of

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the liability of the accused as surety in a transaction, the accused has issued the instant Ext.P-2 cheque dated 30.7.2010 for Rs.2,80,900/drawn from his account and payable in favour of the chit company and that the cheque when presented was dishonoured on the ground of insufficiency of funds and Ext.P-3 dishonour memo dated 2.8.2010 was issued by the bank pursuant to which the complainant company had issued Ext.P-4 demand notice dated 30.8.2010, which was duly served on the accused as per Exts.P-5 and P-6 and the accused has not responded to the same. Thereafter, the complainant, after complying with the requisite formalities, has initiated the complaint, which resulted in the instant trial. During trial, the complainant has examined

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Crl.R.P.No.309 of 2017

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the legal assistant of the complainant company and the power of attorney holder as PW-1 and marked Exts.P-1 to P-10 documents and the defence has not adduced any oral or documentary evidence.

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Both the courts below held that the complainant has adduced necessary evidence to prove the transaction as well as to prove the issuance of the cheque. That the petitioner stood as surety in respect of a chit transaction in which one Sri.M.P.Firoze Khan, who was the subscriber for 2 chits for sala of Rs.2 lakhs each and the subscriber auctioned the chits and obtained the prize money and failed to pay the future instalments towards the said chit accounts and as such, as on 16.7.2010, a sum of Rs.2,86,932/- was due from the aforesaid subscriber as evident from Exts.P-7 & P-8 statement of accounts. Exts.P-9 & P-10 are agreements in which the petitioner was stood as surety to the said transaction. Since the subscriber has not paid the defaulted amount, the petitioner-surety had issued the instant cheque in respect of both the chits of the subscriber in respect of the defaulted amount of both the chits of the subscriber, etc. The defence suggestion put forward while cross-examining PW-1 is that while disbursing the the prized amount, the complainant company had obtained one blank signed cheque from the accused and 2 blank signed stamp paper which

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Crl.R.P.No.309 of 2017

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has now been used by the complainant and the petitioner had not actually executed the cheque voluntarily in favour of the complainant as alleged in the complaint, etc. Whereas in Sec.313 statement, the case of the of the accused was that he had given a signed blank cheque to the above said subscriber Firoz Khan to give it as security to the company, etc. Both the courts below on an assessment of the evidence viewed that the defence suggestion has not been properly established and the complainant company could broadly prove the transaction and execution of the cheque. It is in the light of these aspects that the courts below have concurrently rendered the finding of conviction against the petitioner. Since the said factual findings cannot be said to be perverse or illegal, this Court is not in a position to interfere with the same in the revisional proceedings. As regards the sentence, the trial court has sentenced the petitioner to simple imprisonment for three months and to pay a fine of Rs.3.52 lakhs with default clause of 3 months' simple imprisonment and the fine amount so realised was ordered to the paid to the complainant as compensation. The appellate court had set aside the substantive sentence and sentenced the petitioner to pay a fine of Rs.3,85,880/- and sustained the default clause. It can be seen that the cheque amount in this case is only Rs.2,86,932/- whereas the fine

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Crl.R.P.No.309 of 2017

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amount imposed by the courts below is Rs.3.52 lakhs. It is also to be appreciated that the petitioner was not a subscriber to the chits, but only a surety to the subscriber. Having regard to the facts and circumstances, this Court is of the view that the fine amount could be reduced to the cheque amount (viz, Rs.2,86,932/-). Sri.M.R.Nandakumar, learned counsel appearing for the revision petitioner would submit that in case this Court is so inclined to uphold the conviction, then this Court may grant at least 6 months' time to pay off the said amount directly to the complainant company. The complainant company does not appear to have serious objection to this course of action now adopted by the Court. Accordingly, the following orders are passed:

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(i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I.Act by the courts below is confirmed.

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(ii) The impugned sentence to pay fine amount of Rs.3.52 lakhs will stand modified and the petitioner is sentenced to pay a fine of Rs.2,86,932/- (Rupees Two Lakhs Eightysix Thousand Nine Hundred and Thirtytwo only) with the default clause of 3 months.

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(iii) The petitioner is given 6 months' time from 1.7.2017 to pay the above said amount directly to the complainant. On receipt of such amount the complainant will ensure that necessary receipts are issued to evidence payment of such amounts by the accused. Any such payments so

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Crl.R.P.No.309 of 2017

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made by the petitioner directly to the complainant will 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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(iv) The petitioner will personally appear before the trial court at 11:00 a.m. on 6.1.2018 to satisfy the trial court about the payment of fine amount to the complainant.

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(v) Until 6.1.2018 all coercive steps taken against the petitioner-accused in execution of the impugned sentence will stand deferred.

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

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With these observations and directions, the Crl.R.P. stands finally

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disposed of.

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bkn/-

V.P.Abdul Salam v. State of Kerala

Case brief

What is this about?

What did the court decide?

V.P.Abdul Salam v. State of Kerala

Case brief

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