Partly allowed

Viswan V.P. v. Sree Gokulam Chits and Finance Ltd.

Kerala HC13 Jan 2017Crl.Rev.Pet/41/2017

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenged conviction and sentence for cheque dishonour under Sec.138 NI Act. The High Court upheld the conviction but modified the sentence to imprisonment till rising of the court and reduced the fine to the cheque amount, allowing compensation payment.

What did the court decide?

Conviction confirmed; sentence reduced to imprisonment till rising of the court; fine reduced to Rs. 50,240.

Viswan V.P. Vs Sree Gokulam Chits and Finance 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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FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938

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Crl.Rev.Pet.No. 41 of 2017 () -----------------------------CRA 673/2014 of SESSIONS COURT, KOZHIKODE-III CC 219/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PERAMBRA

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:-:

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VISWAN V.P., AGED 49 YEARS, S/O. GOVINDAN, VADAKKEKARA HOUSE, KALPATHUR P.O., NOCHAD VILLAGE, KOYILANDY TALUK, KOZHIKODE DIST.

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BY ADV. SRI.MOHANAN V.T.K.

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:-:

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1. SREE GOKULAM CHITS AND FINANCE LTD.,

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REPRESENTED BY SUDHEESH KUMAR P.K., AGED 36 YEARS, S/O P.K.KRISHNAN, SREE GOKULAM CHITS AND FINANCE LIMITED, LOVELY BUILDING, ULLIERY ROAD, PERAMBRA, KOZHIKODE.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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R1 BY ADV. SRI.K.SIVAKUMAR R2 BY PUBLIC PROSECUTOR SAIGI JACOB PALATTY

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ALEXANDER THOMAS, J.

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Crl.R.P.No. 41 of 2017

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==================

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Dated this the 13^th day of January, 2017

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O R D E R

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The aforecaptioned Revision has been instituted to impugn the conviction and sentence imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act, as per judgment dated 7.11.2014 of the Judicial First Class Magistrate's Court-I, Perambra, in C.C.No.219/2013 (as affirmed by the impugned judgment dated 26.10.2015 of the Sessions Court, Kozhikode, in Crl.Appeal No.673/2014).

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Aggrieved by the said conviction and sentence, the instant revision petition has been filed by the petitioner by taking recourse to the remedy under Secs.397 and 401 of the Code of Criminal Procedure.

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Heard Sri.V.T.K.Mohanan, learned counsel appearing for

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the revision petitioner accused, Sri.K.Sivakumar, learned counsel appearing for R-1 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor, appearing for the 2^nd respondent State.

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Crl.R.P.41/17 - : 2 :-

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The allegation of the prosecution is that in discharge of the liability to the complainant in a chit transaction, the revision petitioner accused had issued Ext.P-2 cheque dated 12.12.2012 for amount of Rs.50,240/- in favour of the complainant. The complainant had presented the cheque for encashment, upon which the same was dishonoured, due to insufficiency of funds. Statutory notice has been issued to him, which was received by him. However, the revision petitioner did not make payment of the cheque amount within the statutory period or thereafter, which resulted in the institution of the present complaint.

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Before the court below, P.W-1 was examined on behalf of the complainant and Exts.P-1 to P-9 were marked. The defence had not adduced any evidence. The courts below after evaluation the oral and documentary evidence adduced on record, concurrently found that the revision petitioner had executed Ext.P-2 cheque as contemplated under Sec.138 of the Negotiable Instruments Act. The attempt of the defence to attack the said evidence of the complainant was repelled by the both the courts below. On a perusal of the concurrent findings on fact, this Court is of the considered view that it will not be justified to interfere with the

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Crl.R.P.41/17 - : 3 :-

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impugned conviction and sentence, as the same is not tainted by any gross perversity or unreasonableness or illegality. No circumstances have been pointed out to the notice of this Court so as to indicate that the concurrent findings of the courts below are in any way vitiated by any illegality or perversity. In the said circumstances, the concurrent findings rendered by the both the courts below do not warrant any interference at the hands of this Court.

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The trial court sentenced the petitioner to undergo simple imprisonment for 3 months and to pay a fine of Rs.70,000/under Sec.138 of the N.I. Act and in default thereof, to undergo simple imprisonment for a further period of 3 months. It was further ordered that if the fine amount is remitted, an amount of Rs.50,240/- will be given to the complainant as compensation under Sec.357(1) of the Cr.P.C. The said sentence has been affirmed by the appellate Sessions Court.

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Faced with the situation, Sri.V.T.K.Mohanan, learned counsel appearing for the revision petitioner accused submits that in case this Court is affirming the impugned conviction, then the petitioner has an alternate plea that the sentence may suitably

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Crl.R.P.41/17 - : 4 :-

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modified and that the substantive sentence of 3 months' imprisonment may be reduced to imprisonment till rising of the court and that fine amount may be limited to Rs.50,240/-, which is the cheque amount. In this connection, the learned counsel for the petitioner would point out that even though the fine amount imposed by the trial court is Rs. 70,000/-, the amount directed to be disbursed as compensation is Rs.50,240/-, which is the amount

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covered Ext.P-2 cheque and therefore, the 1^st respondent complainant also would not have any grievance in this regard. Sri.K.Sivakumar, learned counsel appearing for the 1^st respondent complainant submits that the 1^st respondent has no objection to the

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said course of action. In the result, the revision petition stands allowed in part, with the following directions:

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(i) The conviction imposed by the courts below for the offence under Sec. 138 of the Negotiable Instruments Act will stand confirmed.

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(ii) The substantive sentence of 3 months' simple imprisonment imposed by the courts below will stand modified and reduced to the simple imprisonment till rising of the court.

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(iii) The fine amount of Rs.70,000/- will stand reduced to as fine amount of Rs.50,240/-, which is the amount covered by Ext.P-2 cheque. In default to pay the said fine, the petitioner will suffer simple imprisonment of 3 months.

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(iv) In the event of the abovesaid amount is remitted or recovered, the

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Crl.R.P.41/17 - : 5 :-

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said amount shall be disbursed to the complainant as compensation under Sec.357(1) of the Cr.P.C.

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(v) The petitioner is given 2 months' time from today to appear before the court below so as to suffer the imprisonment till rising of the court and to pay the fine amount of Rs.50,240/-.

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(vi) Until the expiry of the two months from today, further coercive steps that may be taken against the petitioner in pursuance of execution of the impugned sentence will stand deferred.

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With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of.

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Sd/-

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sdk+ ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Viswan V.P. v. Sree Gokulam Chits and Finance Ltd.

Case brief

What is this about?

What did the court decide?

Viswan V.P. v. Sree Gokulam Chits and Finance Ltd.

Case brief

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What the court decided

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