Dismissed

Aboobacker Kottakkodan v. Melethil Muhammed @ Kunhippa

Kerala HC23 Jun 2017Crl.Rev.Pet/732/2017

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision petition in a cheque dishonour case. It upheld the conviction but modified the sentence, granting a six-month period to pay the compensation amount directly to the complainant to avoid imprisonment. Coercive steps were deferred pending the payment deadline.

What did the court decide?

Confirmation of conviction; substitution of fine for direct payment of Rs. 3,00,000 as compensation; six months' time granted for payment; imprisonment period suspended pending payment.

Aboobacker Kottakkodan Vs Melethil Muhammed @ Kunhippa — 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 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939

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Crl.Rev.Pet.No. 732 of 2017 ()

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(THE JUDGMENT DATED 31.03.2017 OF THE COURT OF THE SESSIONS JUDGE, MANJERI IN CRIMINAL APPEAL NO.9/2015 AND THE JUDGMENT DATED 31.12.2014 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II (FOREST OFFENCES), MANJERI, IN S.T.NO.84/2012)

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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1. ABOOBACKER KOTTAKKODAN S/O. VEERAN, CHOLAYIL HOUSE, ANAKKOTTUPURAM P.O, THRIKKALAMGODE, ERNAD TALUK, MALAPPURAM DISTRICT.

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BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN

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RESPONDENT(S) :

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1. MELETHIL MUHAMMED @ KUNHIPPA, S/O.ABDULLA, MELETHIL HOUSE, AMAYOOR P.O., ERNAD TALUK, MALAPPURAM DISTRICT.

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

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BY SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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AMV

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ALEXANDER THOMAS, J.

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Crl.R.P. No.732 of 2017

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Dated this the 23^rd day of June, 2017

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ORDER

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The petitioner is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.84/2012 on the file of the Judicial First Class Magistrate-II, (Forest Offences), Manjeri instituted on the basis of a complaint preferred by the first respondent herein. The trial court has in the impugned judgment rendered on 31.12.2014 has convicted and sentenced the petitioner to undergo simple imprisonment for one month and to pay fine of Rs.3,00,000/-, which is to be disbursed to the complainant as compensation and in default to undergo simple imprisonment for a further period of one month. Further that the fine amount so realised, was ordered to be given to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure.

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Aggrieved thereby, the petitioner had preferred Crl.Appeal No.9 of 2015 before the Sessions Court, Manjeri. The appellate Sessions Court, as per the impugned judgment rendered on 31.03.2017 has upheld the conviction but has modified the substantive sentence of simple imprisonment for one month to simple imprisonment till rising of the court and has also confirmed the fine amount of Rs.3,00,000/- with a default sentence clause of simple imprisonment for one month. The fine amount so realised was

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Crl.R.P. No.732 of 2017

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directed to be paid as compensation to the complainant under Section 357(1) of Cr.P.C. It is aggrieved by these concurrent verdicts of the trial court and the appellate court, that the petitioner has preferred this instant revision petition under Section 397 r/w Section 401 of Cr.P.C.

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The gist of prosecution case is that, towards the discharge of a liability owned by the accused from the complainant, the revision petitioner/accused had issued Ext.P1 cheque dated 17.04.2012 for Rs.3,00,000/-, drawn from the account of the accused payable in favour of the complainant. The cheque, when presented, was dishonoured with an endorsement that the payment was stopped by the drawer. Thereupon the complainant had issued Ext.P4 statutory demand notice dated 02.05.2012 and though it was received by the accused, he was not responded. Thereupon the complainant, after fulfilling the requisite formalities, had instituted the present complaint which resulted in the trial. During the trial, the complainant had examined as P.W.1 and were marked as Exts.P1 to P6 documents. The defence has not adduced any oral or documentary evidence.

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Heard Sri.K.M.Jamaludheen, learned counsel appearing for the revision petitioner/accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R2/State. In the nature of the orders proposed to be passed in support of the revision, notice to R1/complainant will stand dispensed with.

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Crl.R.P. No.732 of 2017

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There are no serious objections raised by the petitioner as regards the findings of both the courts below that the complainant has fulfilled the necessary formalities of the initiation of the complaint like the issuance of service of statutory demand notice etc. Both the courts below, after evaluating the documentary and oral evidence adduced by the parties, found that the revision petitioner has executed Ext.P1 cheque as contemplated under Section 138 of NI Act. The defence set up by the revision petitioner has also been repelled by the courts below. The concurrent findings on facts regarding the conviction of the petitioner, could be interfered with in this revision, only if it is established before this Court that the said findings of facts are perverse and unreasonable. No facts and circumstances could be brought to the notice of this Court to indicate that the concurrent findings rendered by the courts below are tainted by any perversity or unreasonableness. The petitioner has not been able to convince this Court that the impugned judgments of both the courts below are in any manner vitiated by grave illegality or impropriety. Therefore, this Court is not in a position to interfere with the concurrent findings of facts regarding the conviction of the petitioner. It is seen that the appellate court had modified and reduced the substantive sentence of simple imprisonment for one month to imprisonment till rising of the court. The cheque amount is Rs.3,00,000/-. In order to ensure the direct payment of the said amount, it is ordered that the direction of

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Crl.R.P. No.732 of 2017

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both the courts below to pay fine of Rs.3,00,00/- is modified by ordering that the petitioner will pay the compensation of Rs.3,00,000/- directly to the complainant under Section 357(3) of Cr.P.C.

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Sri. K.M.Jamaludheen, learned counsel for the revision petitioner would submit that in case this Court is so inclined to uphold the conviction and sentence, then this Court may grant at least eight months to pay the said amount of Rs.3,00,000/- directly to the complainant. Having regarding to this plea, this Court is of the view that time upto eight months need not be granted and time upto six months is granted for making payment.

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Accordingly the following directions and orders are passed:

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i. The impugned conviction and modified substantive sentence for simple imprisonment till rising of the court imposed on the petitioner for the offence punishable under Section 138 of NI Act will stand confirmed.

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ii.In supersession of the orders passed by the courts below, it is ordered that the direction to pay fine of Rs.3,00,000/- is substituted with the order that the petitioner will pay Rs.3,00,000/- as compensation directly to the complainant. On receiving such payment the complainant will give necessary receipts for such payments, so as to enable the accused to produce the same before the trial court and to satisfy the said court about such payments. On default on the part of the

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Crl.R.P. No.732 of 2017

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petitioner to pay the said amount, he will have to undergo simple imprisonment for a period of three months.

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iii.The petitioner will personally appear before the trial court at 11.A.M. on 06.01.2018 to suffer the sentence of imprisonment till the rising of the court and to satisfy the trial court about payment of the total compensation amount of Rs.3,00,000/directly to the complainant. 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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iv.All coercive steps taken against the petitioner in pursuance of execution of the impugned sentence of this case will stand deferred until 06.01.2018. On default of the petitioner either to appear before the trial court from 06.01.2018 or on default of payment of the above said amount, the trial court will proceed against the petitioner in accordance with law.

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With these observations and directions, the Crl.R.P.stands finally disposed of.

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AL EXANDER THOMAS, JUDGE

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AMV/27/06/2017

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/TRUE COPY/ P.A.TO JUDGE

Aboobacker Kottakkodan v. Melethil Muhammed @ Kunhippa

Case brief

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What did the court decide?

Aboobacker Kottakkodan v. Melethil Muhammed @ Kunhippa

Case brief

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