Dismissed

Somasundaran.K v. Sree Gokulam Chit and Finance (P) Ltd.

Kerala HC27 Jan 2020Crl.Rev.Pet/1411/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this criminal revision petition against convictions under Section 138 of the Negotiable Instruments Act. Upholding findings below, the Court found no perversity in the courts below concluding the accused could not rebut the presumption under Section 139. The petitioner was granted time to remit the fine.

What did the court decide?

Petition dismissed. Order of conviction and sentence confirmed. Petitioner granted five months to remit the fine.

Somasundaran.K Vs Sree Gokulam Chit and Finance (P) Ltd. — 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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MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941

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Crl.Rev.Pet.No.1411 OF 2019

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AGAINST THE JUDGMENT IN CRA 380/2018 DATED 23-09-2019 OF ADDITIONAL SESSIONS COURT KOZHIKODE- II

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AGAINST THE JUDGMENT IN ST 411/2017 DATED 31-10-2018 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (N.I ACT CASES), KOZHIKODE

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PETITIONER/APPELLANT/ACCUSED

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SOMASUNDARAN.K AGED 57 YEARS S/O.SANKARAN, KAVANGHAT HOUSE, IDIMUZHIKKAL, CHELEMBRA, MALAPPURAM DISTRICT-673634.

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BY ADVS.

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SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

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1 SREE GOKULAM CHIT AND FINANCE (P) LTD. GOKULAM TOWERS, NO.66, ARCOT ROAD, CHENNAI, REP. BY ITS ASSISTANT BUSINESS MANAGER, SASIDHARAN K., AGED 59 YEARS, S/O.RAGHAVAN NAIR, REGIONAL OFFICE, FIRST FLOOR, C.K.TOWER, VANDIPETTA, NADAKKAVU P.O., KOZHIKODE.

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2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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R2 BY SRI C K PRASAD-PP

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.01.2020, THE COURT ON 27.01.2020 PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.1411 OF 2019

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R. NARAYANA PISHARADI, J

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Crl.R.P.No.1411 of 2019

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Dated this the 27^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.411/2017 on the file of the Court of the Judicial First Class Magistrate (N.I Act Cases), Kozhikode.

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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 and sentenced him to pay a fine of Rs.2,39,700/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was realised, it shall be paid to the complainant as compensation.

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The petitioner filed Crl.A.No. 380/2018 before the Court of Session, Kozhikode, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal.

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Crl.Rev.Pet.No.1411 OF 2019

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Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition.

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Heard the learned counsel for the revision petitioner.

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The case of the complainant is as follows: The complainant is a company conducting chitty business. One Dinesh Kumar had subscribed to the chitty conducted by the complainant company. The accused was the guarantor in that chitty transaction. An amount of Rs.3,24,200/- was due from Dinesh Kumar to the complainant company in the chitty transaction. The accused executed and issued a cheque dated 16.01.2017 for that amount to the complainant company in discharge of the aforesaid liability. 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 lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount.

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During the trial of the case, PW1 was examined and Exts.P1 to P8 documents were marked on the side of the complainant. No evidence was adduced by the accused.

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Crl.Rev.Pet.No.1411 OF 2019

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The Assistant Business Manager of the complainant company was examined as PW1. He gave evidence that one Dinesh Kumar had subscribed to the chitty conducted by the complainant and that the accused was the guarantor in that transaction. The subscriber of the chitty auctioned the same and received the chitty amount but he made default in repayment of the amount. PW1 gave evidence that, as on 24.12.2016, an amount of Rs.3,19,500/- was due from the subscriber of the chitty towards the principal amount and Rs.4,793/- was due from him towards interest. PW1 also gave evidence that he went to the house of the accused with the Manager (Arrears) and then the accused executed and issued the cheque for Rs.3,24,000/- in favour of the complainant company in discharge of the liability.

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Ext.P2 agreement executed by the subscriber of the chitty and the accused was proved through PW1. The accused did not challenge the execution of Ext.P2 agreement by him.

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Ext.P9 computer print out of the accounts of the relevant chitty transaction, which was certified under Section 65B of the Indian Evidence Act, was produced and proved to show that as on 24.12.2016, an amount of Rs.3,24,293/- was due from the subscriber of the chitty to the complainant company.

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Crl.Rev.Pet.No.1411 OF 2019

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The plea of the accused was that he had given a signed blank cheque to the complainant company in an earlier chitty transaction and that the company misused the aforesaid cheque and filed the case. No evidence was adduced by the accused to prove the aforesaid plea. Nothing was also brought out in the cross-examination of PW1 to prove that the aforesaid plea is probable.

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The execution of the cheque by the accused and delivery of the same to the complainant company was proved by the evidence of PW1. Then, the burden was upon the accused to rebut the presumption under Section 139 of the Act. The accused failed to rebut the presumption in any manner.

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The authority of PW1 to represent the complainant company was challenged during the trial of the case. Ext.P1 copy of the resolution passed by the Board of Directors of the complainant company, which was duly attested by one of the directors of the company, was produced to show that PW1 had authority to represent the company. PW1 also gave evidence that he has got direct knowledge regarding the transaction involved in the case.

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In the aforesaid circumstances, I find that the courts below have properly analysed the evidence in the case and come to the right conclusion. There is no illegality, impropriety or perversity in the

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Crl.Rev.Pet.No.1411 OF 2019

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appreciation of evidence 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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While imposing the sentence of fine on the accused, the trial court took note of the fact that the subscriber of the chitty had paid an amount of Rs. 84,500/- after the filing of the case. There is no sufficient ground to interfere with the sentence imposed on the accused by the trial court, which stands affirmed by the appellate court.

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Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court, which stands affirmed by the appellate court, is confirmed. However, the petitioner/accused is granted a period of five 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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lsn

Somasundaran.K v. Sree Gokulam Chit and Finance (P) Ltd.

Case brief

What is this about?

What did the court decide?

Somasundaran.K v. Sree Gokulam Chit and Finance (P) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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