Dismissed

Bijesh, v. Taji Narayanan

Kerala HC5 Sept 2019Crl.Rev.Pet/876/2019

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a criminal revision petition seeking an extension of time to pay compensation for a cheque bounce case. The court distinguished the cited precedent because the current petition was not admitted on merits and settlement was not feasible.

What did the court decide?

Time was not granted for payment of compensation; the revision petition was dismissed in limine.

Bijesh, Vs Taji Narayanan — Cheque Dishonour | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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Crl.Rev.Pet.No.876 OF 2019

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AGAINST THE JUDGMENT IN CRA 118/2017 DATED 31-05-2019 OF ADDITIONAL DISTRICT & SESSIONS COURT,MUVATTUPUZHA

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AGAINST THE JUDGMENT IN CC 252/2015 DATED 23-02-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KOOTHATTUKULAM

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REVISION PETITIONER/APPELLANT/ACCUSED:

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BIJESH, AGED 44 YEARS S/O.SUKUMARAN, PARAPPANATTU HOUSE, VAZHAPPILLY KARA, MUDAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM.

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BY ADVS. SRI.GEO PAUL SRI.SANU MATHEW SRI.RADHIKA RAJASEKHARAN P. SRI.C.R.PRAMOD SMT.V.S.SIMI

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RESPONDENTS/RESPONDENT NO.1 & STATE/COMPLAINANT:

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1 TAJI NARAYANAN, S/O.NARAYANAN, ALACKAL HOUSE, KOZHIPPILLY KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM, PIN - 686 662.

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2 STATE OF KERALA, REPRESENTED BY PUBIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.

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SR.PP.C.N.PRABHAKARAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.876/2019 2

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ORDER

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Dated this the 5th day of September 2019

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The revision on hand came up for admission on 25.7.2019 and on that day the learned counsel for the revision petitioner did not argue it on merits but only sought for sometime for settling the issues with the 1^st respondent/complainant. According to the learned counsel, revision is preferred from concurrent findings of guilt, conviction and sentence and valid grounds are lacking to sustain a revision.

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This Court in indulgence was pleased to issue notice to the 1^st respondent by speed post returnable within two weeks only to see the possibility for working out an settlement among the parties and posted the revision to 8.8.2019. On that day, though the 1^st respondent was served with notice issued by this Court, he failed to enter appearance either personally or through a counsel. The learned counsel then submitted that if some time is granted, she would procure the presence of the 1^st respondent to ascertain whether the plan to settle as proposed by her would work out positively. Accordingly, this Court adjourned the revision to

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Crl.Rev.Pet.No.876/2019 3

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4.9.2019. On 4.9.2019, the presence of the 1^st respondent could not be procured by the learned counsel as undertaken. In that context the prayer to grant further time for paying the compensation is sought.

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According to the learned counsel, this Court is empowered to grant time in a revision as the direction in the impugned judgment was to pay compensation to the 1^st respondent. According to her, compensation being not punitive in nature, this Court is perfectly justified in granting time for payment. She has also cited Gopakumar V. Diju Ramakrishnan and another [2010 KHC 1052] to rest her contention. According to her, the factual situation in the case cited is identical to the one on hand and this Court had granted time to the revision petitioner to pay compensation to the respondent.

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The revision on hand, as already stated, is not one admitted to the files of this Court. The offence under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I Act') being one compoundable under Section 147 N.I Act, this Court was inclined to show indulgence and thereby notice was issued to the 1^st

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Crl.Rev.Pet.No.876/2019 4

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respondent to ascertain the possibility of an amicable settlement of the issues involved. Due to failure of the 1^st respondent to turn up, despite service of notice on him, this Court found that a settlement is impracticable.

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The factual situation in the case cited is undoubtedly distinct and that is clear on a reading of paragraph 4 of the judgment extracted hereunder:

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“4. The Courts below are concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complaint had validly complied with clause (a) and clause (b) of the proviso to S.138 of the Act, and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the Courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. This Court sitting in the rarefied revisional jurisdiction will be loath to interfere with the findings of fact recorded by the Courts below concurrently. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the Courts below and the same is hereby confirmed.”

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It is true, that this Court had considered the legality of

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the sentence imposed on the revision petitioner and based on the

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decision of the Apex Court in Vijayan v. Sadanandan.K and another 2009(2) KLT 618 which directed the courts to slap a default sentence of imprisonment while awarding compensation

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Crl.Rev.Pet.No.876/2019 5

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under Section 357(3) Cr.P.C, modified the sentence to one of fine to the tune of Rs.4,75,000/- and directed the same to be paid as compensation under Section 357(1)(b) Cr.P.C. The court had also permitted the revision petitioner either to deposit the fine amount before the trial court or pay the amount as compensation directly to the complainant within seven months from the date on which the order was passed. On his failure to make the payment within the time granted, the court had also directed the revision petitioner to suffer simple imprisonment for three months as default sentence. It is clear from paragraph 4 extracted above that the modification of the sentence was done and time granted to execute the modified sentence in a revision after admitting the same to the files of the court and while disposing it of.

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Indisputably, the factual situation in the case cited supra is unidentical to the one on hand for the reason that the latter is not admitted to files of this Court for want of existence of any legally sustainable grounds warranting the same. Some indulgence was shown by issuing notice to the respondent only to see possibility for the proposal for settlement to work out practicably. This Court has found after issuing notice to the 1^st

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respondent that he is not interested in the proposal for settlement. Therefore, unlike in Gopakumar 's case supra, the revision on hand being not an admitted one, this Court is declined to modify the direction issued concurrently by courts below by granting time for making payment.

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If the revision petitioner actually intended to pay the compensation, he must have taken measures to pay the compensation directed to be paid by the judgment under challenge within 1½ months time, he had obtained from 29.7.2019, till this day during which period the revision petition was pending consideration.

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The circumstances of the revision on hand being distinct from those in Gopakumar 's case supra, this Court is declined to grant the time sought now by the revision petitioner.

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Grounds to sustain a revision having not been pointed out by the learned counsel, the revision petition is dismissed in limine .

Sd/-

MARY JOSEPH

JUDGE

JJ/

Bijesh, v. Taji Narayanan

Case brief

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Bijesh, v. Taji Narayanan

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