Partly allowed

L.Ponnamma v. Daniel

Kerala HC14 Dec 2023Crl.Rev.Pet/2743/2008

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court of Kerala upheld the conviction of an elderly woman under Section 138 of the NI Act but commuted her two-month sentence to imprisonment till rising of court, retaining the compensation amount, citing the long delay and her age.

What did the court decide?

Conviction upheld; sentence modified to imprisonment till rising of court; compensation of Rs.75,000 retained with default imprisonment for two months.

L.Ponnamma Vs Daniel — Cheque Dishonour | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

 PRESENT

¶3

 THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

¶4

 THURSDAY, THE 14 TH DAY OF DECEMBER 2023 / 23RD AGRAHAYANA,

¶5

¶6

 CRL.REV.PET NO. 2743 OF 2008

¶7

 AGAINST THE JUDGMENT DATED 29.06.2002 IN CC 299/1997 OF
 JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR
 CRL.APPEAL NO.147/2002 OF ADDITIONAL SESSIONS COURT
 (ADHOC)-II, KOLLAM

¶8

REVISION PETITIONER/APPELLANT/ACCUSED:

¶9

 L.PONNAMMA, TEACHER,
 AGED 49 YEARS,

¶10

 THOTTAPURATHU VEEDU, VETTUVAZHI, CHADAYAMANGALAM P.O.,
 KOLLAM DISTRICT.

¶11

 BY ADV. SAIJO HASSAN

¶12

RESPONDENTS/RESPONDENT/COMPLAINANT:

¶13

1 DANIEL, S/O DAVEED, PUTHUKUNNATHU VEEDU, PULLAMKODU, ARACKAL.

¶14

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

¶15

 R1 BY ADVS.
 SRI.MOHAN JACOB GEORGE
 SMT.P.V.PARVATHI
 SMT.REENA THOMAS
 SRI.L.RAM MOHAN

¶16

 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
 HEARD ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED
 THE FOLLOWING:

¶17

Crl.R.P No.2743 of 2008 2

¶18

O R D E R

¶19

This revision is at the instance of the accused in C.C.No.299 of 1997 on the file of Judicial First Class Magistrate-I, Punalur, assailing the judgment in Crl.Appeal No.147 of 2002 on the file of Additional District and Sessions Judge (Adhoc)-II, Kollam, which upheld her conviction and sentence under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’).

¶20

C.C.No.299 of 1997 was based on a private complaint filed by the 1st respondent herein, under Section 138 of the NI Act, against the revision petitioner. His case was that he was the holder in due course of Ext.P1 cheque dated 30.01.1997. The financial transaction was between the revision petitioner and one Mr.D.Pappachan, from whom she had borrowed Rs.1,75,000/- on 01.11.1996. Towards discharge of that debt, she issued two cheques, one cheque dated 30.11.1996 for Rs.1,00,000/- and another cheque dated 30.01.1997 for Rs.75,000/-. The cheque dated 30.01.1997 for Rs.75,000/- was indorsed in favour of the 1st respondent/complainant, by Sri.D.Pappachan, who is his own brother. He presented the cheque before Bank for collection, but it was returned dishonoured for the reason of insufficiency of

¶21

Crl.R.P No.2743 of 2008 3

¶22

funds. He sent statutory notice to the revision petitioner on 05.02.1997 and she accepted the same on 08.02.1997. Though she sent a reply notice raising false allegations, the amount was not returned and hence the complaint.

¶23

On appearance of the revision petitioner before the trial court, particulars of offence was read over and explained, to which she pleaded not guilty. Thereupon PWs 1 and 2 were examined and Exts.P1 to P16 were marked to prove the case of the complainant. On closure of evidence of the complainant, the revision petitioner was questioned under Section 313 of Cr.P.C. She denied all the incriminating circumstances brought on record. DWs 1 to 3 were examined and Exts.D1 to D3 were marked from defence side.

¶24

On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 138 of the NI Act and she was convicted and sentenced to undergo simple imprisonment for two months and to pay compensation of Rs.75,000/- to the complainant under Section 357(3) of Cr.P.C.

¶25

Aggrieved by the conviction and sentence, the revision

¶26

Crl.R.P No.2743 of 2008 4

¶27

petitioner preferred Crl.Appeal No.147 of 2002, and the appellate court, on reappreciation of the facts and evidence, found that there was no illegality or impropriety in the judgment of conviction and sentence by the trial court and hence the appeal was dismissed, against which, she has come up with this revision.

¶28

Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgment of conviction and sentence imposed on the revision petitioner.

¶29

Heard learned counsel for the revision petitioner and learned counsel for the 1st respondent/complainant.

¶30

The revision petitioner has no dispute with respect to the financial transactions, which she had with Sri.D.Pappachan. The evidence of PW1 shows that for Rs.1,75,000/- borrowed by the revision petitioner, from Sri.D.Pappachan, she issued two cheques to him; one for Rs.1,00,000/- and the other for Rs.75,000/-. The cheque dated 30.01.1997 for Rs.75,000/issued by the revision petitioner in favour of Sri.D.Pappachan was indorsed in favour of his brother-the 1st respondent/complainant. Though the revision petitioner challenged the indorsement in

¶31

Crl.R.P No.2743 of 2008 5

¶32

favour of the complainant by Sri.D.Pappachan, she utterly failed to substantiate her contention. She has no case in her reply notice that, the complainant was not a holder in due course, and so he has no locus to initiate the proceedings. During her 313 examination also, she had no case that the complainant was not the holder in due course of Ext.P1 cheque. Her contention that, she was not having any subsisting account with the drawee bank on 30.01.1997 also was found against her, through the evidence adduced by PW2, and the documents produced from the bank, as Exts.P7 to P11.

¶33

When the transaction alleged in the complaint was proved against the revision petitioner, she pleaded discharge and according to her, she had repaid Rs.85,000/- on 30.11.1996 and got back the original documents given as security, which were given by her to Sri.D.Pappachan. But she failed to prove the payment of Rs.85,000/- to Sri.D.Pappachan so as to say that, Ext.P1 cheque was not supported by consideration. The trial court as well as the appellate court analysed the evidence in its correct perspective and found that, Ext.P1 cheque was issued by the revision petitioner towards discharge of Rs.75,000/-, which

¶34

Crl.R.P No.2743 of 2008 6

¶35

was due from her to Sri.D.Pappachan. The indorsement of that cheque in favour of the 1st respondent/complainant also was found proper, and so he was found competent to file the complaint against the revision petitioner, when that cheque was dishonoured for the reason insufficient funds. The revision petitioner failed to rebut the presumption available in favour of the complainant, under Sections 118 and 139 of the NI Act. The statutory requirements to constitute an offence under Section 138 of the NI Act were all complied with by the 1st respondent/ complainant, and the revision petitioner also has no such dispute. So this Court finds no illegality or impropriety in the judgment of the courts below, by which the revision petitioner was found guilty under Section 138 of the NI Act, and so the conviction is only to be upheld.

¶36

Regarding the sentence, the trial court convicted her to undergo simple imprisonment for two months and to pay compensation of Rs.75,000/- to the 1st respondent/complainant. Learned counsel for the revision petitioner pointed out that, the revision petitioner is an age old lady, and so the substantive sentence of simple imprisonment for two months may be

¶37

Crl.R.P No.2743 of 2008 7

¶38

modified and reduced to imprisonment till rising of court. The transaction is of the year 1997. The trial court convicted the revision petitioner on 29.06.2002. The appellate court confirmed the conviction and sentence as per judgment dated 26.02. 2008. The revision was pending before this Court from 2008 onwards. For all these years, the revision petitioner was carrying the trauma of conviction in a criminal case. So this Court is of the view that, after a long lapse of about 26 years from the date of transaction, and after undergoing the trauma of litigation in various forums upto this Court, sending an old lady behind the Bars for an offence punishable under Section 138 of the NI Act may not be justified. So this Court is of the view that substantive sentence can be modified and reduced to imprisonment till rising of court, but without altering the compensation amount. In default of payment of compensation, the revision petitioner has to undergo simple imprisonment for two months.

¶39

In the result, the revision petition is allowed in part upholding the conviction under Section 138 of the NI Act, but modifying and reducing the substantive sentence to imprisonment till rising of court, retaining compensation of

¶40

Crl.R.P No.2743 of 2008 8

¶41

Rs.75,000/- under Section 357(3) of Cr.P.C., with a default sentence of simple imprisonment for two months.

¶42

The revision petitioner is directed to appear before the trial court on or before 31.01.2024 to receive the sentence and to pay the compensation amount of Rs.75,000/- (Rupees Seventy Five Thousand only) to the 1st respondent/complainant. If the complainant is absent to receive the compensation amount, the revision petitioner has to deposit the amount before the trial court. In default, the trial court has to issue arrest warrant against the revision petitioner to execute the sentence.

¶43

Registry of this Court is directed to transmit the case records forthwith to the trial court for executing the sentence without delay.

¶44

Accordingly, the revision petition stands allowed in part, to the extent as above.

¶45

Sd/-

¶46

SOPHY THOMAS, JUDGE

¶47

DSV/-

L.Ponnamma v. Daniel

Case brief

What is this about?

What did the court decide?

L.Ponnamma v. Daniel

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Basil Vs State of Kerala

Raju Vs State of Kerala

Abdul Azeez Vs the State of Kerala

Vasudevan Vs Excise Inspector,Karthikappally

P.a.Sadanandan Vs Aaremsky Sports and Fitness

Parukutty Vs State of Kerala