Dismissed

Babin Kumar K. v. N.A. Pradeep Kumar

Kerala HC20 Sept 2017Crl.Rev.Pet/549/2017

Case brief

AI extract

What is this about?

In a criminal revision petition concerning a conviction under Section 138 of the Negotiable Instruments Act for cheque dishonour, the High Court held that the lower courts' findings were not vitiated by perversity. The revision was dismissed, but the High Court allowed for a reduction of the default sentence from four to two months and granted time to pay the fine.

What did the court decide?

Conviction and fine confirmed; default remainder of imprisonment reduced to 2 months; 10 months time granted to pay balance fine.

Babin Kumar K. Vs N.A. Pradeep Kumar — 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 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 1939

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Crl.Rev.Pet.No. 549 of 2017 ()

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CRA.241/2015 of SESSIONS ,KASARAGOD CC.179/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II (ADDITIONAL MUNSIFF) KOZHIKODE

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REVISION PETITIONER/APPELLANT/ACCUSED:

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BABIN KUMAR K., AGED 33 YEARS, S/O GOKULA NAIK, KUDLU, R.D. NAGAR P.O., KASARGOD - 671 125.

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BY ADV. SRI.T.G.RAJENDRAN

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RESPONDENT(S)/COMPLAINANT & STATE:

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1. N.A. PRADEEP KUMAR, AGED 48 YEARS, S/O RAMDAS, SRUTHI NIVAS, THIRUVANGAD P.O., THALASSERY, KANNUR DISTRICT - 671 101.

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

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R1 BY ADV. SRI.M.SASINDRAN

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R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALETTY

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.R.P.No.549 Of 2017

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Dated this the 20th day of September, 2017.

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O R D E R

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The petitioner has been indicted for the offence punishable under Sec.138 of the Negotiable Instruments Act, in C.C.No.179/2014 on the file of the Judicial First Class Magistrate Court-II (Additional Munsiff), Kasaragod, instituted on the basis of a complaint filed by the 1st respondent. Ext.P-1 dishonoured cheque dated 5.10.2013 is for Rs.5,80,000/-. The trial court as per the impugned judgment rendered on 9.9.2015 has convicted the petitioner for the above said offence and has sentenced him to pay a fine of Rs.5,80,000/- and in default of payment of fine, the accused was sentenced to undergo simple imprisonment for a further period of 4 months and the fine amount so realised was directed to be paid as compensation under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Crl.A.No.241/2015 before the Sessions Court, Kasaragod. The appellate Sessions Court, as per the impugned judgment rendered on 22.4.2017 has dismissed the appeal and thereby affirmed the impugned conviction

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Crl.R.P.No.549 Of 2017

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and sentence rendered by the trial court. 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.T.G.Rajendran, learned counsel for the revision petitioner-accused and Sri.M.Sasindran, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

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The gist of the allegations in the complaint is to the effect that the accused was introduced to the complainant in September, 2012 by one Sri.Chandran, who is running a petrol pump at Kasaragod and in view of this connection, the accused, who is running a bakery at Bangalore, requested the complainant on 2.10.2012 to advance a temporary personal loan of Rs.5,80,000/- to him on the assurance that the accused would return the same. That later on 5.10.2012, the complainant had given the amount at his residence and while receiving the amount, the accused had executed and handed over Ext.P-1 post dated cheque, dated 5.10.2013, for Rs.5,80,000/- drawn from the account of the accused and payable in favour of the complainant and that the cheque was later presented, which resulted in dishonour as per Ext.P-2 bank memo dated 10.10.2013 and thereupon the complainant

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Crl.R.P.No.549 Of 2017

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had caused to send Ext.P-3 statutory demand notice dated 23.10.2013 to pay the amount covered by the cheque within 15 days of receipt of the notice and the notice send by registered post was duly served on the accused as per Ext.P-4 and as there was no response from the accused and since the amount was not paid, the complainant, after following the requisite formalities has instituted the present complaint, which resulted in the instant trial. During trial, the complainant was examined as PW-1 and marked Exts.P-1 to P-4 documents. The defence has examined DW-1 & 2 and marked Ext.D-1 document.

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PW-1 has broadly given evidence in tune with the contents of the complaint. The main case set up by the accused was to the effect that there was no transaction whatsoever between the petitioner and the complainant herein and that the accused had borrowed an amount of Rs.10 lakhs from the above said Chandran (friend of the complainant herein) and later an arrangement was made at the insistence of Chandran that a property worth Rs.20 lakhs belonging to DW-2 (father-in-law of the accused) would be sold to one Sri.Umesh, who is stated to be the friend of Chandran for Rs.10 lakhs as evident from Ext.D-1 sale deed. The accused has given evidence as DW-1 and father-in-law of the accused was examined as DW-2. Both the courts

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Crl.R.P.No.549 Of 2017

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below have found that the complainant's evidence is broadly believable and credible. The courts below have also found that the defence taken up by the accused is not probable. True that, it is admitted by the complainant herein that Chandran is his friend. However, his main case is that the accused herein was introduced to the complainant herein by Chandran. That apart, the sale deed covered by Ext.D-1 is between the father-in-law (DW-2) of the present accused and one Sri.Umesh. What exactly is the relationship between Umesh and Chandran and how Chandran his going to gain in this process was not tendered in defence. Further, more crucially, no clinching facts and circumstances have been brought in evidence in this case to atleast remotely probabilise the crucial aspect that the blank signed cheque allegedly given to Chandran by the accused has been misused by the present complainant. In the light of these aspects, both the courts below have concurrently found that the version projected by the defence is probable and credible one. The learned counsel for the 1st respondentcomplainant also submitted that a complaint was separately instituted by Chandran as against the present accused for dishonour of a cheque issued to him for Rs.5 lakhs and that the trial court has convicted the present accused in the said judgment, which was affirmed by the

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Crl.R.P.No.549 Of 2017

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appellate court as well as by this Court by judgment dated 28.7.2017 in Crl.R.P.No.1727/2016. That the very same defence taken in this case was projected in that case, which has been rejected by all the courts. This aspect has not in any manner been disputed by the learned counsel for the petitioner-accused.

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Be that as it may, it can be seen that both the courts below, after meticulously evaluating the present evidence on record, have come to the conclusion that the petitioner has duly executed Ext.P-1 cheque dated 5.10.2013 for Rs.5,80,000/- as contemplated in Sec.138 of the N.I. Act and that the petitioner has committed offence punishable under Sec.138. Both the court below have also duly considered and repelled the defence version. It is on this basis that both the courts below have found that the petitioner is liable to be convicted for the above said offence. On an evaluation of the findings rendered by both the courts below, this Court is of the considered view that the petitioner has not made out any ground to interfere with the concurrent findings of both the courts below inasmuch as those findings are not in any manner vitiated by gross perversity or unreasonableness and this Court is not interfering with the concurrent findings rendered by both the courts below under Sec.138 of the N.I.Act as it does not warrant any

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Crl.R.P.No.549 Of 2017

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interference at the hands of this Court in exercise of its revisional jurisdiction. As regards the question of sentence, it is seen that the trial court has not imposed any substantive sentence and has very liberally imposed a fine of Rs.5,80,000/- with default sentence of simple imprisonment for 4 months. The appellate court also concurred with the said sentence imposed by the trial court. The fine amount of Rs.5,80,000/- would only cover the amount in respect of the dishonoured cheque. Accordingly, this Court is not in a position to interfere with the impugned sentence as well.

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Sri.T.G.Rajendran, learned counsel appearing for the revision petitioner-accused submits that in compliance with this Court's interim order dated 31.5.2017, passed in this revision petition, the petitioner had already deposited an amount of Rs.1 lakh before the trial court on 30.6.2017 in relation to this case before the trial court and a photocopy of the said receipt dated 30.6.2017 has also been made available for perusal of this Court along with Crl.M.A.No.3720/2017 filed in Crl.R.P.No.549/2017. If that be so, the said amount of Rs.1 lakh could be deducted from the total fine amount of Rs.5,80,000/- payable by the petitioner. Such amount so deposited by the petitioner shall be immediately released to the complainant on an application in that

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Crl.R.P.No.549 Of 2017

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regard is made by the party. Having regard to the facts and circumstances of this case, this Court is of the view that default sentence of 4 months could be reduced to 2 months. The petitioner's counsel would also submit that in case this Court is so inclined to confirm the impugned conviction and sentence of fine, then this Court may grant 10 months' time to pay the balance fine amount. It is pointed out by the petitioner's counsel that in view of this Court's order dated 28.7.2017 in Crl.R.P.No.1727/2016, the petitioner has to pay the balance fine amount of Rs.5 lakhs in relation to that case and that time up to 3.3.2018 has

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been granted by this Court in that case. In the light of these aspects, in the interest of justice, the following directions are issued:

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(i) The impugned conviction and sentence of fine of Rs.5,80,000/and default sentence clause are confirmed in relation to this case.

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(ii) In case the petitioner has deposited any amount in relation to this case before the trial court, then the said amount shall be deducted from the fine amount of Rs.5,80,000/- payable by the petitioner.

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(iii) The petitioner is given 10 months' time from 1.10.2017 to pay the balance fine amount. The fine amount so realised shall be disbursed to the complainant under Sec.357(1)(b) of the Cr.P.C. immediately on its remittance by the petitioner. On default of payment of the above said amount, the petitioner will have to undergo simple imprisonment for 2 months as now ordered by this Court.

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Crl.R.P.No.549 Of 2017

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(iv) The petitioner will personally appear before the trial court at 11:00 a.m. on any day on or before 4.8.2018 so as to remit the balance fine amount/fine amount as the case may be.

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(v) Until 4.8.2018 all coercive steps taken against the accused in execution of the sentence will stand deferred.

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(vi) On default of the petitioner either to pay the above said fine amount or to appear before the court below on 4.8.2018, the trial court will be at liberty to proceed against the petitioner in accordance with law.

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Registry will forward a copy of this judgment to the trail court

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

finally disposed of.

ALEXANDER THOMAS,

Judge.

bkn/-

Babin Kumar K. v. N.A. Pradeep Kumar

Case brief

What is this about?

What did the court decide?

Babin Kumar K. v. N.A. Pradeep Kumar

Case brief

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What did the court decide?

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