Partly allowed

Hari @ Harikuttan v. State of Kerala

Kerala HC7 Jun 2017Crl.Rev.Pet/45/2017

Case brief

AI extract

What is this about?

In a criminal revision petition against conviction and sentence for cheque dishonour under Section 138 NI Act, the High Court confirmed the conviction and compensation but reduced the substantive sentence to imprisonment till rising of the court, granting the petitioner eight months to pay the fine.

What did the court decide?

Conviction and compensation confirmed; substantive sentence reduced to imprisonment till rising of the court; petitioner granted eight months to pay fine.

Hari @ Harikuttan 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. 45 of 2017 ()

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AGAINST THE JUDGMENT IN CRA 30/2014 of ADDL. D.C. & SESSIONS COURT - III, MAVELIKKARA

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AGAINST THE JUDGMENT IN CC 5/2011 of J.M.F.C.-II, HARIPAD

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REVISION PETITIONER/APPELLANT/ACCUSED:-

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HARI @ HARIKUTTAN, AGED 38 YEARS, S/O.GOPALAN, THAMALLACKAL SOUTH MURI, THAMALLACKAL P.O., KUMARAPURAM VILLAGE, KARTHIKAPALLY THALUK - 690 548.

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BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL

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RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:-

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

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2. S.CHANDRAN,

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AGED 53 YEARS, UZHINIYIL HOUSE, POTHAPPALLY NORTH MURI, KUMARAPURAM VILLAGE, KARTHIKAPALLY THALUK - 690 548.

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R2 BY ADV. SRI.ARUN CHANDRAN R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALETTY

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 0706-2017, 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. 45 of 2017 ---------------------------------------------Dated this the 7^th day of June, 2017

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ORDER

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The petitioner is the accused in C.C No.5/2011 on the file of the Judicial First Class Magistrate No.II, Haripad, for offence punishable under Section 138 of the Negotiable Instruments Act,1881 instituted on the basis of the complaint filed by the 2^nd respondent herein. The trial court as per the impugned judgment dated 30.12.2013 had convicted the petitioner and sentenced to undergo simple imprisonment for 3 months and to pay compensation of Rs.4,00,000/- to the complainant under Section 138 of Negotiable Instruments Act and in default of payment thereof, to further undergo simple imprisonment for two months. Aggrieved by the said conviction and sentence, the petitioner had preferred Crl.Appeal No.30/2014 before the Additional Sessions Judge-III, Mavelikkara. The appellate Sessions court concerned as per the impugned judgment dated 9.8.2016 confirmed the conviction and sentence, thereby dismissed the appeal. It is aggrieved by the said concurrent findings 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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Crl. Rev. Petition No. 45 of 2017 2

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The prosecution allegation is that towards discharge of the liability owned by the accused to the complainant, the revision petitioner/accused issued the instant Ext.P1 cheque dated 5.10.2010 for Rs. 4 lakhs drawn from the account of the accused and payable in favour of the complainant. The cheque when presented by the complainant was dishonored which resulted in statutory demand notice in terms of Section 138 proviso (b) of the NI Act on calling upon the accused to pay the amount of cheque within a period of 15 days from the date of receipt of the said notice and the said notice was duly served on the accused and no reply was given by the accused. There upon the complainant had preferred the instant complaint after following the statutory formalities in that regard. During the trial, the complainant has examined himself as PW1 and two other witnesses examined as PW2 and PW3. The prosecution has been marked as Exts.P1 to P14 documents. The defence has adduced evidence through DW1 and DW2. The defence exhibits were marked as Exts. D1 to D3 documents. The court exhibits were also marked as Exts. C1 to C4.

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The courts below after evaluating the oral and documentary evidence made by the parties have concurrently

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Crl. Rev. Petition No. 45 of 2017 3

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found that there is sufficient evidence to establish that the revision petitioner/accused had executed Ext.P1 cheque as contemplated under Section 138 of the Negotiable Instruments Act. The defence set up by the revision petitioner/accused was also repelled by both the courts below. Since there are concurrent findings of facts regarding the conviction of the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, this Court sitting in revision will not be justified in interfering with such considered findings of facts, unless the said findings are perverse or incorrect. No circumstances has been brought to the notice of this court to indicate that the said concurrent findings of facts rendered by both the courts below are initiated by gross perversity or unreasonableness. The impugned judgments cannot be said to be vitiated by any grave illegality or impropriety. The petitioner has not been able to establish any cogent grounds so as to enable this court to invoke its revisional jurisdiction to interfere with the considered findings of facts rendered by the courts below on a concurrent basis. In these circumstances, concurrent findings rendered by both the courts below that the petitioner has committed the offence under Section 138 of the

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Crl. Rev. Petition No. 45 of 2017 4

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Negotiable Instruments Act, does not warrant any interference.

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As regards the question of sentence, it is seen that the cheque amount is Rs.4 lakhs and the trial court has sentenced to undergo simple imprisonment for 3 months and to pay compensation of Rs. 4 lakhs with default clause of simple imprisonment for two months etc. The appellate court has found that not only the conviction but also the impugned sentence of the trial court are liable to be confirmed. As regards the question of sentence, this Court is of the view that the substantive sentence of simple imprisonment of three months could be reduced suitably as imprisonment till rising of the court. The compensation awarded by both the courts below for Rs.4 lakhs is not disproportionate or high in as much as the cheque amount is for the same amount and the courts below have not ordered for the grant of any interest thereon.

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Sri.Rinny Stephen Chamaparambil, the learned counsel appearing for the revision petitioner/accused submits that this Court may grant at least 10 months time to pay the fine for compensation amount of Rs.4 lakhs. After taking into account of the facts and circumstances of the case, this Court

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Crl. Rev. Petition No. 45 of 2017

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inclined to grant time by 8 months for making the payment. Accordingly the following directions are issued.

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i. The impugned conviction imposed on the petitioner for the offence punishable under Section 138 of the NI Act in relation to this case will stand confirmed.

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ii. The impugned substantive sentence of simple imprisonment for three months imposed by the courts below will stand reduced to imprisonment till rising of the court.

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iii. The compensation amount ordered by the courts below coming to Rs.4,00,000/- to the complainant will stand confirmed and the default clause is also confirmed.

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iv. The petitioner is given 8 months time from 15.06.2017 to pay the compensation amount of Rs.4,00,000/- directly to the complainant. On such payment the complainant will give receipts so as to enable the accused to present the same to the trial court to satisfy the said court about those payments.

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v. The petitioner will appear before the trial court at 11.am on 17.02.2018 to receive the sentence of imprisonment till rising of the court and to satisfy the trial court about payment of the said

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Crl. Rev. Petition No. 45 of 2017

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compensation amount of Rs.4,00,000/-.

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vi. On default of the petitioner to pay the said amount, he will have to undergo simple imprisonment for a period of two months.

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vii. Until 17.02.2018, all further coercive steps have been taken against the petitioner in pursuance of the execution of the impugned sentence will stand defered.

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viii. On default of the petitioner either to appear before the trial court on 17.02.2018 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 revision

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petition is disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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sab

Hari @ Harikuttan v. State of Kerala

Case brief

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Hari @ Harikuttan v. State of Kerala

Case brief

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