Dismissed

K.v.George v. State of Kerala

Kerala HC29 May 2023Crl.Rev.Pet/180/2003

Case brief

AI extract

What is this about?

Single Judge Bench dismissed a criminal revision petition challenging a conviction for cheque bounce under Section 138 NI Act. The court held that evidence proved a legally enforceable debt and rejection of the cheque was well-founded, finding no merit in the appeal.

What did the court decide?

Criminal revision petition dismissed with no interference in the conviction or modified sentence.

K.v.George Vs State of Kerala — Cheque Dishonour | Kerala HC (2023)

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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 BECHU KURIAN THOMAS

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MONDAY, THE 29TH DAY OF MAY 2023 / 8TH JYAISHTA, 1945

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CRL.REV.PET NO. 180 OF 2003

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AGAINST THE ORDER/JUDGMENTCRA 62/2000 OF ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA CC 220/1998 OF CHIEF JUDICIAL MAGISTRATE, THODUPUZHA REVISION PETITIONER/APPELLANT/ACCUSED:

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K.V.GEORGE
KULANGARAYIL,
KEEZHEURAPUZHA,
PURAPPUZHA P.O.,
VAZHITHALA.
BY ADVS.
SRI.B.RAMAN PILLAI
SRI.ANIL K.MOHAMMED
SRI.R.ANIL
SRI.GEORGE PHILIP
SRI.RAJU RADHAKRISHNAN

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

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1STATE OF KERALA
KULANGARAYIL, PUTHUPPARIYARAM P.O.,
THODUPUZHA.
2STATE REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR C N PRABHAKARAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 29.05.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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CRL.REV.PET NO. 180 OF 2003

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BECHU KURIAN THOMAS, J

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......…..................................

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Crl.Rev.Pet. No.180 of 2003

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….................................. Dated this the 29^th day of May, 2023

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ORDER

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Petitioner is the accused in C.C.No.220/1998 on the files of the

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Chief Judicial Magistrate’s Court, Thodupuzha. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act, 1881. By judgment dated 05.04.2000, petitioner was found guilty of the offence alleged and was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.62,000/- in default to undergo simple imprisonment for another three months. On appeal, to the Additional Sessions Court, Adhoc-I, Thodupuzha as Crl.Appeal No.62/2000, the learned Sessions Judge by judgment dated 05.10.2002 confirmed the conviction, but modified the sentence into one of fine only and directed Rs.60,000/- out of the fine amount to be paid as compensation to PW1 and allowed the appeal in part. Aggrieved by the confirmation of the conviction, imposed upon the petitioner, this revision petition was preferred.

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CRL.REV.PET NO. 180 OF 2003

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Sri.R.Anil, the learned counsel for the revision petitioner,

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submitted that the allegations raised in the complaint are totally bereft of any materials and are not supported by any evidence. It was further submitted that the trial court as well as the appellate court egregiously erred in finding the petitioner guilty. According to the counsel, there was no evidence to prove that the cheque was issued in discharge of a legally enforceable debt and that the cheque having been issued as a security, no offence as such was made out.

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Even though, this Court had on 05.03.2013 noticed the death of the first respondent and directed impleadment of the legal heirs, except for seeking time to implead the legal heirs, no steps have been taken. Obviously, the petitioner has defaulted in impleading the legal heirs and on this reason alone, this revision petition ought to have been dismissed. However, since the case arises out of the penal provisions of 138 of NI Act, this Court proceeds to consider the matter on merits.

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According to the complainant, a loan of Rs.60,000/- was

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obtained by the accused from the complainant on 20.03.1997

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CRL.REV.PET NO. 180 OF 2003

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agreeing to repay the same within one year with interest. After the expiry of the period, when the complainant approached the accused for repayment, a cheque dated 23.03.1998 was issued by the accused, which, when presented for encashment, was dishonoured with a memo stating ‘insufficient funds’. Pursuant to issuance of legal notice, the complaint was filed. The prosecution examined PW1 and PW2 and marked Exts.P1 to P4 while the defence examined DW1 and DW2 and marked D1 and D2.

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On a perusal of the evidence adduced, it is noticed that the nature of liability and the debt incurred by the accused were specifically spoken to by the complainant in his deposition. PW2-the postman, who was examined to prove the service of notice, specifically deposed that the notice was served on the accused and since he refused to accept the notice stating that he will not receive it, the notice was retained with the post office for several days and then returned with the endorsement ‘unclaimed’.

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The evidence adduced in the case was properly appreciated by the trial court as well as the appellate court and the conclusions arrived at therein is legally discernible from the records and the

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CRL.REV.PET NO. 180 OF 2003

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materials produced.

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The presumption under Section 139 of NI Act is rebuttable and it

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is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. Though DW1 and DW2 were examined on behalf of the accused, their evidence could not create any dent in the prosecution case. Therefore, the conclusion arrived at by the trial court as well as the appellate court is worthy of acceptance. In this context, it is pertinent to note that the appellate court had converted the sentence of imprisonment into one of fine only, and having regard to the circumstances, there is no scope for any interference, that too in exercise of the revisional jurisdiction of this Court.

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In view of the above discussion, notwithstanding the failure of the petitioner to implead the legal heirs, I find no merit in the criminal revision petition, and the same is dismissed.

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sd/-

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BECHU KURIAN THOMAS JUDGE

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AMV/30/05/2023

K.v.George v. State of Kerala

Case brief

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K.v.George v. State of Kerala

Case brief

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