Partly allowed

Radhakrishnan Nair v. State of Kerala

Kerala HC28 Jun 2017Crl.Rev.Pet/87/2014

Case brief

AI extract

What is this about?

In a criminal revision petition under Sections 397 and 401 Cr.P.C. against a conviction for cheque dishonour, the High Court upheld the conviction. The court confirmed the conviction and compensation but reduced the default imprisonment clause from five months to two months.

What did the court decide?

Conviction and compensation of Rs.4,00,000/- confirmed; default imprisonment reduced to two months; one month time granted to pay compensation.

Radhakrishnan Nair 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 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939

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Crl.Rev.Pet.No. 87 of 2014 ()

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CRA 316/2009 OF II ADDITIONAL SESSIONS COURT. KOLLAM

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REVISION PETITIONER/APPELLANT/ACCUSED:

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RADHAKRISHNAN NAIR., AGED 50 YEARS, S/O.JANARDHANAN PILLAI, ALUVILA VEEDU, EDAYADI, POOTHAKULAM P.O., KOLLAM.

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BY ADV. SMT.G.VIDYA

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT:

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

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2. THULASEEDHARAN, S/O.PADMANABHAN, T.S.BHAVAN, KURUMANDAL, PARAVOOR, KOLLAM, PIN - 691 301.

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R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALETTY R2 BY ADV. SRI.HARISH GOPINATH

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sdr/-

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ALEXANDER THOMAS, J.

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---------------------------------------Crl.R.P.No.87 of 2014

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----------------------------------------Dated this the 28^th day of June, 2017

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O R D E R

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The revision petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.360 of 2005 on the file of the Judicial First Class Magistrate Court, Paravoor, instituted on the basis of a complaint filed by the second respondent herein.

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The trial court, as per the impugned judgment rendered on 14.8.2009, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for a period of four months and to pay compensation of Rs.4,00,000/- to the complainant and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a period of five months. The compensation amount, if realised, shall be given to the complainant under Section 357(3) of the Cr.P.C. Aggrieved thereby the petitioner had preferred Crl.Appeal No.316 of 2009 before the Sessions Court, Kollam. The appellate court concerned (Court of the II Additional Sessions Judge, Kollam), as per the impugned judgment rendered on 16.3.2012, had confirmed the conviction and modified the substantive sentence to imprisonment till the rising of the court and to pay

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Crl.R.P.No.87/2014

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compensation amount as ordered by the trial court with default clause. It is challenging these findings of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C.

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Heard Sri.G.Vidya, learned counsel appearing for the revision petitioner/accused, Sri.Harish Gopinath, learned counsel appearing for R2/complainant, and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State.

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The gist of the prosecution allegation is that towards discharge of the liability of Rs.4,00,000/- owed by the revision petitioner/accused to the complainant, the revision petitioner/accused had issued the instant Exhibit P1 cheque dated 18.11.2004 for Rs.4,00,000/- drawn from his account and payable in favour of the complainant and that the said cheque when presented resulted in dishonour. Pursuant to which the complainant had issued Exhibit P5 statutory demand notice dated 27.11.2004, calling upon the accused to pay off the said amount covered by the cheque within 15 days from the date of receipt of such notice. The said registered demand notice so sent was served on the accused as evidenced by Exhibits P6 and P7. The accused had not sent any reply thereto consequent to which the complainant had preferred the instant complaint after complying the

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Crl.R.P.No.87/2014

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requisite formalities. This resulted in the trial.

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During trial, the complainant was examined himself as PW1. DW1 was examined on behalf of the defence and Exhibits P1 to P7 documents were marked. DW1 was examined on behalf of the defence.

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The courts below after carefully evaluating the oral and documentary evidence on record adduced by the parties have concurrently found that the revision petitioner has executed Exhibit P1 cheque for an amount of Rs.4,00,000/- as contemplated under Section 138 of the Negotiable Instruments Act. Both the courts below have found that the complainant has complied with the requisite formalities before the initiation of the complaint. The only defence set up by the accused was that he had earlier borrowed an amount of Rs.2,00,000/from one Sri.Muraleedharan Pillai and had issued two blank signed cheques and had pledged the records of a bus. He had repaid the said amount after twelve months, but the cheques were not returned back. The present complaint was filed misusing one of the said cheques. Both the courts below found that the complainant could broadly prove his case. Except raising suggestions, the accused could not bring out any clinching circumstances so as to establish a probable and credible defence case. Accordingly, both the courts below found that the

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complainant has proved his case and has thus held that the accused is liable to be convicted for the offence under Section 138 of the Negotiable Instruments Act.

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In view of the said concurrent findings of facts regarding the conviction of the petitioner, this Court sitting in revision could be justified in interfering with the same, only if the said findings are perverse, unreasonable or illegal. This Court does not find any circumstances to indicate that the said concurrent findings rendered by both the courts below are in any manner perverse or illegal. In these circumstances, the concurrent findings rendered by both the courts below that the revision petitioner is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act cannot be subjected to any revisional interdiction.

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As regards the question of sentence, it is seen that the trial court had earlier sentenced the petitioner to undergo simple imprisonment for four months with direction to pay a compensation of Rs.4,00,000/- with the default clause of simple imprisonment for five months. The appellate court has modified and reduced the substantive sentence of simple imprisonment for four months to imprisonment till the rising of the court and has confirmed the compensation amount of Rs.4,00,000/- with the default clause. The cheque amount is for

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Rs.4,00,000/-. Hence, the said modified sentence and the compensation amount cannot be said to be excessive or disproportionate. In these circumstances, this Court is constrained to hold that no ground has made out to interfere with the said sentence as well. However, the default clause is liable to be reduced to two months' simple imprisonment.

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Accordingly, the following orders and directions are issued :

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(i) The impugned conviction imposed on the petitioner for the offence under Section 138 of the Negotiable Instruments Act will stand confirmed.

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(ii) The impugned conviction and the modified sentence of imprisonment till the rising of the court and the compensation amount of Rs.4,00,000/- are confirmed. However, the default sentence clause will stand reduced to simple imprisonment for two months.

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(iii) The petitioner is given four months' time from 15.7.2017 to pay the compensation amount of Rs.4,00,000/- directly to the complainant. Upon receiving such payments, the complainant will give necessary receipts to enable the accused and present the same before the trial court to satisfy the said court about payments.

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(iv) The petitioner will personally appear before the trial court at 11 A.M. on 25.11.2017 to suffer the sentence of imprisonment till the rising of the court and to satisfy the trial court about payment of the compensation amount of Rs.4,00,000/- to the complainant. Needless to say, on default of the petitioner to pay the compensation amount, he

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Crl.R.P.No.87/2014

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will have to suffer simple imprisonment for a period of two months.

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(v) Until 25.11.2017 all further coercive steps that may be taken in pursuance of the execution of the impugned sentence in this case will stand deferred.

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(vi) On default of the petitioner either to appear before the trial court on 25.11.2017 or to pay the abovesaid compensation amount, 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 Crl.Revision Petition

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will stand finally disposed of.

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ALEXANDER THOMAS JUDGE

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csl

Radhakrishnan Nair v. State of Kerala

Case brief

What is this about?

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Radhakrishnan Nair v. State of Kerala

Case brief

What is this about?

What did the court decide?

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