Dismissed

D.Rajeev v. B.Anil Kumar

Kerala HC18 Sept 2018Crl.Rev.Pet/1150/2017

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal revision petition challenging the conviction and sentence for an offence under Section 138 of the Negotiable Instruments Act. The Court distinguished an Apex Court precedent and held that the non-mention of the exact borrowing date was not fatal as the witness testified to the month of borrowing in October 2009.

What did the court decide?

The appeal was dismissed; six months were granted to the appellant to pay the fine.

D.Rajeev Vs B.Anil Kumar — Cheque Dishonour | Kerala HC (2018)

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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 B.SUDHEENDRA KUMAR

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TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940

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Crl.Rev.Pet.No. 1150 of 2017

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ST 915/2010 of J.M.F.C.-I, PUNALUR

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Crl.A 263/2014 of ADDL. SESSIONS COURT - IV, KOLLAM

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REVISION PETITIONER/APPELLANT/ACCUSED:

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D.RAJEEV

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AGED 44 YEARS, S/O. DHAMODHARAN, CHARUVILA PUTHEN VEEDU, VADAMON P.O., ANCHAL VILLAGE.

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BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

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RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:

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1 B.ANIL KUMAR AGED 31 YEARS, S/O. BHASKARAN, MARANGALASSERI VEEDU, KURUVIKONAM, ANCHAL VILLAGE - 691 013.

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2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -31.

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BY ADVS. SRI.A.CHANDRA BABU SRI.PRATAP K.PUSHPAKARAN

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OTHER PRESENT:

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SRI. E C BINEESH-PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 1150 of 2017

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ORDER

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The revision petitioner was convicted and sentenced by the courts below under Section 138

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of the Negotiable Instruments Act, 1881 ( for short “the N.I.Act”).

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2. Heard.

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3. The learned counsel for the revision

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petitioner has argued that since the date of transaction was not mentioned in the complaint or in the evidence of PW1, the conviction and

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sentence passed by the courts below cannot be

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sustained. The learned counsel relied on the decision of the Apex Court in Vijay v. Laxman [(2013) 1 KLT 157 (SC)] to support his argument.

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4. In Vijay (supra), the money was borrowed on 14.8.2007 and the cheque was also issued on the very same day. The said cheque was presented for encashment on the very same day. In the said

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Crl.Rev.Pet.No. 1150 of 2017

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circumstances, the Apex Court observed that if the accused had money with him on the date of issuance of the cheque, there was hardly any need for the accused to borrow the amount from the complainant. In the said circumstances, the court below held that the complainant should have shown

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the date of transaction in the complaint. The facts of the present case are different from the facts in Vijay (supra). In the present case, PW1 clearly stated that the money was advanced during October, 2009. The cheque is dated 20.12.2009. The cheque was presented on 10.3.2010. Since PW1 clearly stated that the money was borrowed in October, 2009, the non-mentioning of the exact date of borrowing of the amount by the revision petitioner is not fatal to the prosecution. It

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is stated in the cross-examination that the cheque was issued on the date of borrowing the

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Crl.Rev.Pet.No. 1150 of 2017

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-4-

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amount, but with a date 20.12.2009. Thus, it is clear that even though the cheque was issued during October, 2009, the said cheque was having

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the date 20-12-2009. In view of the above reasons, the argument advanced in this regard by the learned counsel for the revision petitioner cannot be accepted.

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5. Even though the revision petitioner had a contention that the cheque in question was issued in connection with a chitty transaction, PW1 categorically stated that PW1 had no chitty business at all. Even though Exts.D1 and D2 series were marked for the defence, PW1 was not confronted with the said documents. PW1 was also not a signatory to any of the said documents. Having gone through the relevant inputs, I am

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satisfied that the courts below correctly appreciated the oral and documentary evidence and

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Crl.Rev.Pet.No. 1150 of 2017

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-5-

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concurrently found that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I.Act and committed the offence under Section 138 of the N.I.Act, rejecting the contentions of the revision petitioner. No material has been brought to the notice of this Court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the offence under Section 138 of the N.I.Act does not warrant any interference by this Court. The sentence awarded by the appellate court also does not warrant any interference by this Court.

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In the result, this revision petition stands

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Crl.Rev.Pet.No. 1150 of 2017

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-6-

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dismissed.

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However, the revision petitioner is granted six months to pay the fine as requested by the learned counsel for the revision petitioner. Needless to state that if the revision petitioner had already deposited any amount before the trial court pursuant to the direction of this Court, the said amount will be treated as part payment of the fine.

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Sd/-

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B.SUDHEENDRA KUMAR

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JUDGE

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Scl/22.9

D.Rajeev v. B.Anil Kumar

Case brief

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D.Rajeev v. B.Anil Kumar

Case brief

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