Dismissed

Samuel George v. State of Kerala

Kerala HC7 Jun 2017Crl.Rev.Pet/3651/2009

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, confirming conviction, maintaining fine but reducing default imprisonment to one month, and granting time for fine payment.

What did the court decide?

Conviction confirmed; fine of Rs. 1 lakh maintained but default clause reduced to one month; petitioner granted 6 months to pay fine to complainant; coercive steps suspended until 16.12.2017.

Samuel George 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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WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939

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Crl.Rev.Pet.No. 3651 of 2009 ( )

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AGAINST THE JUDGMENT IN CRA 268/2007 of II ADDITIONAL SESSIONS COURT, KOLLAM

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AGAINST THE JUDGMENT IN ST 575/2005 of J.M.F.C.-II, KOLLAM

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REVISION PETITIONER

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SAMUEL GEORGE, MALIYEKKAL BUNGLOW ANDOOR P.O., VALAKAM, KOTTARAKKARA.

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BY ADV. SRI.T.M.ABDUL LATHIEF

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RESPONDENT(S)/(RESPONDENTS/COMPLAINANTS):

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

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2. K.KUNJU KUNJU, X'LAN, NAZEERATHU BHAVAN, AYATHIL P.O., KOLLAM.

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R1, BY ADV. PUBLIC PROSECUTOR SRI. JESTIN MATHEW, R2 BY ADV. SRI.M.T.SURESHKUMAR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-062017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sab

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ALEXANDER THOMAS, J.

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Crl. Rev. Petition No. 3651 of 2009 ---------------------------------------------Dated this the 7^th day of June, 2017

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ORDER

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The petitioner is the accused in S.T No.575 of 2005 on the file of the Judicial First Class Magistrate's Court-II, Kollam for offence under Section 138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 2^nd respondent herein. The trial court as per the impugned judgment rendered on 13.4.2007 had convicted the petitioner for the above said offence and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.1 lakh to the complainant and in default to undergo simple imprisonment for two months under Section 357(3) Cr.P.C. Aggrieved by the said conviction and sentence, the petitioner had preferred Crl.Appeal No.268/2007 before the Additional Sessions Court, Kollam. The appellate court, as per the impugned judgment dated 22.9.2008 had confirmed the conviction but has modified the sentence, and has set aside the substantive sentence of simple imprisonment for six months and ordered to sentence the petitioner to pay fine of Rs.1 lakh to the complainant with the default clause of simple imprisonment for three months. The fine amount so paid was

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Crl. Rev. Petition No. 3651 of 2009 2

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directed to be given disbursed to the complainant as compensation as per section 357(1) of Cr.P.C. It is aggrieved by the above said judgments of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C

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Heard Sri. T.M Abdul Latheef, the learned counsel appearing for the revision petitioner (Accused), Sri. M.T Sureshkumar, the learned counsel appearing for R2 (Complainant) and Sri. Jestin Mathew, the learned Public Prosecutor appearing for R1, State of Kerala.

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The gist of the case of the complainant is that the accused had borrowed an amount of Rs.1 lakh from the complainant and discharge of that liability the instant Ext.P1 cheque dated 4.3.2003 was issued for Rs.1 lakh drawn from the account of the accused payable in favour of the complainant. When the cheque was presented it was dishonoured. After completing the due formalities including issuance of statutory demand notice, the complainant has initiated the present complaint which has led to the trial in question.

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During the trial the complainant has examined as

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Crl. Rev. Petition No. 3651 of 2009 3

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PW1 and he has also examined two of the prosecution witnesses as PW2 and PW3. Prosecution also marked Exts.P1 to P6 documents and the defence has not adduced any oral or documentary evidence. PW1 has broadly deposed in tune with the contents of his complaint. He has deposed about the borrowal of the amount of Rs.1 lakh to the complainant and the issuance of Ext.P1 cheque by the accused as stated above. The main defence set up by the accused was that the cashew factory belonging to the complainant sister was taken on rent by the accused and he had then issued a blank signed cheque as security for rent for one year and that the said cheque has been misused by the complainant etc. Both the courts below found that except raising these defence suggestions, no clinching materials have been brought out either in the cross examination of PW1 or by adducing any independent defence evidence to even remotely establish the veracity of such a suggestion. Therefore the said defence case remain only in the realm of suggestions. PW3 is the Sub Post Master of the area concerned, who has deposed that the statutory demand notice in question was duly served by the department but that the notice was returned as unserved. The trial court found that as the said registered notice was taken out in the address

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Crl. Rev. Petition No. 3651 of 2009 4

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of the accused, there is deemed service of notice in that regard. Though PW1 was subjected to cross examination regarding the transactions with the accused, both the courts below had found that no material aspects could be brought out in such cross examination in favour of the petitioner. In the light of all these cumulative aspects, both the courts below had come to the considered conclusion that the petitioner is liable to be convicted for the offence. These findings of facts cannot be said to be tainted by gross perversity or unreasonableness. No serious illegality or impropriety are seen committed in the rendering of the impugned judgment of both the courts below.

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The petitioner has not been able to establish any cogent grounds to invoke the remedy of revision so as to interfere with the findings of facts regarding the conviction of the petitioner. As regards the question of sentence it is seen that the appellate court has already modified the substantive of six months and has sentenced the petitioner only to pay a fine of Rs.1,00,000/- (which is the cheque amount) along with a default sentence clause of 3 months. Having regard to the facts and circumstances of the case the default clause of 3 months could be reduced to 1 month. Otherwise, the

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Crl. Rev. Petition No. 3651 of 2009 5

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sentence of fine does not deserve any interference. The petitioners counsel sought at least six months time may be granted to pay the fine amount of Rs.1 lakh directly to the complainant in view of the extreme financial difficulties faced by the petitioner. Accordingly, the following orders and directions are passed.

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i. The impugned conviction imposed on the petitioner will stand confirmed.

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ii. The modified sentence of fine of Rs.1 lakh imposed by the appellate court is also confirmed. However the default clause will stand reduced to one month.

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iii. The petitioner will pay the said amount of Rs.1 lakh directly to the complainant and the complainant will issue receipts to the accused so that the accused can produce the same before the trial court to satisfy the trial court about payment of the amount. Any such payments made by the accused directly to the complainant will be treated as if those amounts have been paid as fine and then disbursed to the complainant as compensation under Section 357(1) (b) of Cr.P.C.

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iv. The petitioner is given six months time from 15.6.2017 to pay the said amount directly to the complainant.

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v. The petitioner will appear before the trial court at 11.am on 16.12.2017 to satisfy the trial court about payment of the said amount of Rs.1 lakh

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Crl. Rev. Petition No. 3651 of 2009

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directly to the complainant.

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vi. Needless to say, on default of the petitioner to pay the said amount, he will have to undergo simple imprisonment for a period of one month.

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vii. Until 16.12.2017, all further coercive steps that may be taken against the petitioner in pursuance of the execution of the impugned sentence will stand under suspension.

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viii. On default of the petitioner either to appear before the trial court on 16.12.2017 or in paying the above said amount as directed above, 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 criminal revision petition stands finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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sab

Samuel George v. State of Kerala

Case brief

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Samuel George v. State of Kerala

Case brief

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