High Court confirmed conviction for cheque dishonour but reduced fine to cheque amount, allowed repayment within six months to substitute imprisonment, and deferred coercive steps.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 6TH DAY OF NOVEMBER 2017/15TH KARTHIKA, 1939
Crl.Rev.Pet.No. 432 of 2017 ()
CRL.A.NO. 485/2013 OF ADDITIONAL SESSIONS COURT-I, MAVELIKARA ST.NO. 29/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, MAVELIKARA
REVISION PETITIONER/APPELLANT/ACCUSED:
SREELATHA, AGED 38 YEARS, W/O.SURESHKUMAR, EZHASSERIL PUTHENVEEDU, CHUNAKKARA NADUVIL, CHUNAKKARA VILLAGE.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENTS/COMPLAINANT/STATE:
1. K.S. PRASANNAKUMARAN, S/O.SREEDHARAN PILLAI, PRADEESH BHAVANAM, CHUNAKKARA NADUVIL, CHUNAKKARA VILLAGE, ALAPPUZHA DISTRICT-690 534.
2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY ADVS. SRI.ARUN AJAY SHANKAR
SRI.JIKKU SEBAN GEORGE R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
ALEXANDER THOMAS, J.
.................................................................... Crl.RP No.432 of 2017
.................................................................... Dated this the 6th day of November, 2017.
O R D E R
The petitioner has been arrayed as accused for offence punishable under Section 138 of the Negotiable Instruments Act in ST No.29/2012 on the file of the Court of Judicial Magistrate of the First Class-III, Mavelikkara instituted on the basis of a complaint filed by the first respondent herein. Ext.P1 dishonoured cheque dated 30.08.2011 is for Rs.3,00,000/-. The trial court as per the impugned judgment rendered on 30.10.2013, had convicted the petitioner for the abovesaid offence and had sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.3,54,000/-, and in default thereof to undergo simple imprisonment for one month. It was also directed to release the fine amount, if realised, to the complainant in terms of Section 357(1) of the Code of Criminal Procedure. The appellate court concerned (Court of Additional Sessions Judge-I, Mavelikkara) as per the impugned judgment rendered on 25.01.2017 had partly allowed Crl.Appeal No.485/2013 filed by the petitioner (accused) confirming the finding of conviction and modifying the sentence to imprisonment till the rising of the court and to pay fine of Rs.3,54,000/- and in default thereof to undergo simple imprisonment for one month. It is
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challenging these judgments of the courts below that the petitioner (accused) has filed the instant revision petition.
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statutory demand notice under Section 138 proviso (b) of the NI Act calling upon the accused to pay back the amount covered by the dishonoured cheque within a period of 15 days from the date of receipt of such notice. The said notice sent by registered post has been duly served on the accused as evident from Ext.P5 postal receipt and Ext.P6 acknowledgment card. Since the accused had not responded to the said notice and since the amount was not paid, the complainant after adhering to the requisite formalities has instituted the present complaint, which resulted in the trial. During the trial, the complainant has been examined as PW1 and has marked Exts.P1 to P8 documents. The defence has not adduced any oral or documentary evidence. PW1 (complainant) has broadly deposed in tune with the contents of his complaint. For justifying the source of funds to make the borrowal, PW1 has produced Exts.P7 and P8 Bank passbooks, which would show that an amount of Rs.2,00,000/- has been withdrawn from the account of the complainant on 13.1.2011 as per entries in Ext.P7 passbook and that the balance amount of Rs.1,00,000/- has been raised from other sources. The courts below have found that there are sufficient evidence to show that the complainant was having sufficient funds as on 13.01.2011, the date of the borrowal transaction in question. The main
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defence case set up by the accused was to the effect that though there is no transactions between the accused and the complainant, in the manner alleged in the complaint, and that the accused while borrowing some amounts from a third party, had given the instant cheque as a blank signed one as security in that transaction and even after repayment of the amount, the said person had not returned that cheque and that the same has been misused in the present complaint, etc. The courts below found that except raising such a suggestion, no clinching circumstances could be brought in evidence to sustain and fortify the basis of such a defence suggestion. Accordingly, both the courts below found that PW1 has broadly proved his case and that the defence suggestion is not probable and credible. It is in the light of these findings of facts that the courts below have found that the accused is liable to be convicted for the offence punishable under Section 138 of the NI Act. These concurrent findings of facts made by the courts below cannot be said to be vitiated by perversity or illegality. Therefore, this Court is not in a position to interfere with the said findings regarding conviction of the petitioner by taking recourse to the revisional powers conferred on this Court.
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court has sentenced the petitioner to undergo simple imprisonment for a period of three months and to pay fine of Rs.3,54,000/- and in default thereof to suffer simple imprisonment for a period of one month, and the fine amount so realised is directed to be disbursed as compensation to the complainant in terms of Section 357(1) of the Cr.PC. The Appellate Court while confirming the conviction has reduced the substantive sentence of simple imprisonment for three months to imprisonment till rising of the court and has confirmed the fine amount of Rs.3,54,000/- and the default sentence clause of simple imprisonment for one month.
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balance amount after deducting the deposited amount.
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deducted from the total fine amount of Rs.3,00,000/- payable by the petitioner (accused) and she need to pay only the balance amount in that regard.
Registry will forward a copy of this order to the trial court, for necessary information.
With these observations and directions, this Criminal Revision Petition will stand finally disposed of
(ALEXANDER THOMAS, JUDGE)
jg
2 issues framed by the court
Whether to confirm the conviction of the accused for dishonour of cheque under Section 138 of the NI Act.
Whether to modify the fine amount and grant time for payment of the same.
2 provisions across 2 enactments
Sreelatha
K.S. Prasnakumaran
The State of Kerala
Alexander Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
