Allowed

Sanal Busher v. State of Kerala

Kerala HC15 Jan 2020Crl.Rev.Pet/12/2020

Case brief

AI extract

What is this about?

In this criminal revision petition challenging conviction and sentence under Section 138 NI Act, the High Court found no infirmity in the trial or appellate court's evidence appreciation. The Court confirmed conviction and appellate sentence, granting the appellant four months to remit the fine.

What did the court decide?

Conviction confirmed;Sentence of imprisonment and fine confirmed;Petitioner granted four months to remit fine.

Sanal Busher Vs State of Kerala — Cheque Dishonour | Kerala HC (2020)

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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 R. NARAYANA PISHARADI

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WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941

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Crl.Rev.Pet.No.12 OF 2020

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AGAINST THE JUDGMENT IN CRA 108/2017 OF II ADDITIONAL SESSIONS JUDGE, KOLLAM DATED 16.01.2019

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AGAINST THE JUDGMENT IN ST 100/2014 OF CHIEF JUDICIAL MAGISTRATE, KOLLAM

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REVISION PETITIONER/APPELLANT/ACCUSED:

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SANAL BUSHER AGED 38 YEARS S/O.BUSHER, RESIDING AT KANAN HOUSE, OKKAL, KALADI, ERNAKULAM

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BY ADV. SRI.C.RAJENDRAN

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RESPONDENTS/COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031

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2 JIJU BHASKAR

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S/O.J.BHASKAR, RESIDING AT ANANDA VILASAM, THAMARAKULAM, GANAPATHY NAGAR, -61, KOLLAM-691006

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R2 BY ADV.SRI.T.P.PRADEEP R2 BY ADV.SRI.S.SREEDEVI SRI AJITH MURALI-PP

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-01-2020, THE COURT ON 15-01-2020 PASSED THE FOLLOWING:

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Crl.R.P.No.12/2020

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R.NARAYANA PISHARADI, J ************************

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Crl.R.P.No.12 of 2020

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Dated this the 15^th day of January, 2020

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O R D E R

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The revision petitioner is the accused in the case S.T.No.100/2014 on the file of the Court of the Chief Judicial Magistrate, Kollam.

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The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of six months and directed him to pay an amount of Rs.1,96,000/- as compensation to the complainant and ordered that, he shall undergo simple imprisonment for a period of three months in default of payment of compensation.

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Crl.R.P.No.12/2020

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Crl.A.No.108/2017 was filed by the petitioner before

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the Court of Session, Kollam challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction of the petitioner under Section 138 of the Act but modified the sentence imposed on him by the trial court. The appellate court set aside the substantive sentence of imprisonment imposed on the petitioner by the trial court and sentenced him to imprisonment till the rising of the court and to pay a fine of Rs.1,96,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.

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Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused in the case has filed this revision petition.

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Heard learned counsel for the petitioner and also the second respondent/complainant.

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The case of the complainant is as follows: The accused had purchased goods from the shop of the complainant

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Crl.R.P.No.12/2020

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on cash as well as credit. On 15.08.2013, the accused executed and issued a cheque for Rs.1,96,000/- to the complainant in discharge of the amount due from him to the complainant on account of credit purchase made by him. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a notice to the accused demanding payment of the amount of the cheque. The notice was returned to the complainant with the endorsement “left without any instruction”. The accused did not pay the amount of the cheque.

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During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P9 series documents were marked on his side. DW1 was examined and Exts.D1 and D2 documents were marked on the side of the accused.

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When examined as PW1, the complainant gave evidence in tune with the averments in the complaint. He gave evidence that the accused used to purchase goods from his shop on credit basis. He also gave evidence that, in discharge of the

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Crl.R.P.No.12/2020

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amount due to him on account of credit purchases, the accused executed and issued to him a cheque for Rs.1,96,000/-.

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The plea of the accused was that he had given signed blank cheques to one Shabin and that the complainant had obtained one of such cheques from Shabin and misused it and filed the case.

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During the cross-examination of PW1, he denied acquaintance with any person by name Shabin.

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The accused examined Shabin (DW1) to prove his plea. DW1 gave evidence that he had obtained a cheque and promissory note from the accused and while he shifted his business to Thodupuzha, he entrusted the cheque with the complainant requesting him to file a complaint against the accused.

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On analysis of the evidence of DW1, the courts below found that he is a close friend of the accused and his evidence cannot be accepted as reliable and trustworthy. The courts below found that the evidence given by the complainant as PW1 inspired confidence and it is reliable and trustworthy.

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Crl.R.P.No.12/2020

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Learned counsel for the revision petitioner has not

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pointed out any infirmity, illegality, impropriety or perversity in the appreciation of evidence by the courts below. It is difficult to understand why DW1 should entrust the cheque with the complainant to initiate criminal proceedings against the accused. It eludes comprehension why the complainant should willingly oblige DW1 and file a case against the accused. In these circumstances, I find no infirmity or perversity in the appreciation of evidence and the findings entered by the courts below. Conviction of the petitioner for the offence under Section 138 of the Act is only to be confirmed.

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The appellate court has shown maximum leniency in the matter of imposing sentence on the petitioner. Learned counsel for the petitioner has only prayed that some time may be granted to the petitioner to remit the fine amount.

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In the result, the revision petition is dismissed. Conviction of the petitioner for the offence under Section 138 of the Act is confirmed. The sentence of imprisonment till the rising of the court and the sentence of fine of Rs.1,96,000/- imposed

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Crl.R.P.No.12/2020

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on the petitioner by the appellate court, with the default sentence of imprisonment, are also confirmed. Needless to state that, if the fine amount is realised, it shall be given to the complainant as compensation. The petitioner is granted a period of four months from today to remit the fine amount in the trial court.

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(sd/-) R.NARAYANA PISHARADI, JUDGE

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jsr

Sanal Busher v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sanal Busher v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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