Dismissed

Dr.Stanly Johns v. State of Kerala

Kerala HC20 Dec 2023Crl.Rev.Pet/2822/2008

Case brief

AI extract

What is this about?

High Court of Kerala dismissed a criminal revision petition against a conviction and modified sentence under Section 138 NI Act. The court upheld the finding of due amount based on admission and indorsement, finding no reason to interfere despite reduced sentence arguments.

What did the court decide?

Revision petition dismissed. Sentence reduced to imprisonment till rising of court; compensation of Rs.1,58,594/- payable.

Dr.Stanly Johns Vs State of Kerala — Cheque Dishonour | Kerala HC (2023)

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 IN THE HIGH COURT OF KERALA AT ERNAKULAM
 PRESENT

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 THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 WEDNESDAY, THE 20 TH DAY OF DECEMBER 2023 / 29TH AGRAHAYANA,
 1945

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 CRL.REV.PET NO. 2822 OF 2008

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 AGAINST THE JUDGMENT IN ST No.4859 OF 2005 OF JUDICIAL
 FIRST CLASS MAGISTRATE IV (MOBILE), THIRUVANANTHAPURAM.
 CRL.APPEAL NO.388/2006 OF ADDITIONAL SESSIONS JUDGE, FAST
 TRACK COURT (ADHOC)NO.-IV, THIRUVANANTHAPURAM

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REVISION PETITIONER/APPELLANT/ACCUSED:

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 DR.STANLY JOHNS,
 M/S.STANLY MULTY SPECIALITY HOSPITAL, UDIYANKULANGARA,
 AMARAVILA P.O, NEYYATTINKARA, THIRUVANANTHAPURAM.

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 BY ADVS.
 SRI.R.T.PRADEEP
 SRI.V.VIJULAL

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RESPONDENTS/RESPONDENTS/COMPLAINANT:

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

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2 M/S.ALUMINIUM AND ALLIED CENTRE, NEDIYURATHIL TOWERS, KILLIPPALAM, KARAMANA P.O, THIRUVANANTHAPURAM, REP.BY ITS MANAGER, ABRAHAM P.MATHEW.

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 R2 BY ADVS.
 VIVEK VARGHESE P.J.
 VARUGHESE M EASO

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 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
 HEARD ON 20.12.2023, THE COURT ON THE SAME DAY DELIVERED
 THE FOLLOWING:

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Crl.R.P No.2822 of 2008 2

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O R D E R

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This revision is at the instance of the accused in S.T.No.4859 of 2005 on the file of Judicial First Class Magistrate-IV (Mobile), Thiruvananthapuram, assailing the judgment in Crl.Appeal No.388 of 2006 on the file of Additional Sessions Judge, Fast Track Court (Adhoc) No-IV, Thiruvananthapuram, which upheld his conviction under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’), though the sentence was modified and reduced to certain extent.

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ST No.4859 of 2005 arose out of a complaint filed by

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the 2nd respondent/complainant under Section 138 of the NI

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Act, against the revision petitioner. The case of the complainant was that the revision petitioner owed an amount of Rs.2,83,594/to the 2nd respondent/ complainant, and towards discharge of that debt, he issued Ext.P4 cheque dated 22.04.2005, drawn on State Bank of

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Crl.R.P No.2822 of 2008 3

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Travancore, Udiyankulangara Branch. When that cheque was presented for encashment, it was dishonoured for the reason “insufficient funds”. He sent statutory notice to the revision petitioner, intimating dishonour of the cheque and demanding the cheque amount. Though the revision petitioner received the notice, the amount was not paid, and hence the complaint.

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On appearance of the revision petitioner before the trial court, the substance of accusation was read over and explained, to which he pleaded not guilty and claimed to be tried. Thereupon, PW1 was examined and Exts.P1 to P11 were marked, from the side of the complainant. On closure of complainant's evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record. DWs 1 and 2 were examined and Ext.D1 series were marked, from defence side.

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On analysing the facts and evidence and on hearing

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Crl.R.P No.2822 of 2008 4

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the rival contentions from either side, the trial court found the revision petitioner guilty under Section 138 of the NI Act, and he was sentenced to undergo simple imprisonment for three months, and to pay compensation of Rs.2,83,594/to the complainant, along with cost of Rs.1,000/-, with a default sentence of simple imprisonment for one month and ten days respectively.

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Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No.388 of 2006. The appellate court, on re-appraisal of the facts and evidence, found nothing to interfere with the conviction of the revision petitioner under Section 138 of the NI Act. But the substantive sentence was modified and reduced to imprisonment till rising of court, and the order to pay the cost amount of Rs.1,000/- was set aside, retaining the compensation part and its default sentence. Aggrieved by the judgment of the appellate court, the revision petitioner has preferred this revision.

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Crl.R.P No.2822 of 2008 5

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Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgment.

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Heard learned counsel for the revision petitioner and learned counsel for the 2nd respondent/complainant.

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Learned counsel for the revision petitioner

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vehemently argued that no amount was due from the revision petitioner to the 2nd respondent/complainant. According to him, for the construction of his multi speciality hospital, he purchased some aluminium articles from the shop of the 2nd respondent, and those articles were delivered in eight installments on eight different dates, and

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on receiving each delivery, he used to give a cheque covering the bill amount. The amount due on the first delivery will be paid on delivering goods next time, and the cheque given at the time of earlier delivery used to be returned then. He produced Ext.D1 series cheques, which he

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had issued to the 2nd respondent/complainant, when he paid the amount due, on each delivery. So, according to him,

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Crl.R.P No.2822 of 2008 6

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the entire amount for the articles delivered were already paid by him, and so no amount is actually due to the 2nd respondent/complainant. He would further state that, when the 2nd respondent/complainant quoted to supply articles worth Rs.2,83,594/-, he had issued a cheque for that amount, as a security, without writing the date. Even after making the entire payment of the articles supplied, due to some dispute regarding the balance amount, the complainant misused that cheque and presented it before bank. But he himself admitted before court that Ext.P4 cheque was issued by him to the 2nd respondent/ complainant for an amount of Rs.2,83,594/-. In Ext.P10 reply notice sent by the revision petitioner, he had not pleaded the discharge, as deposed by him before court. In the reply notice, his case was that Ext.P4 cheque was issued only as a security for the aluminium materials purchased for the construction of his hospital building, and settlement of accounts was not done till date. He had further stated in the

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reply notice that the cheque was obtained by

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misrepresentation, and he happened to issue the cheque by oversight.

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It is true that, in the complaint, the 2nd respondent/ complainant has not stated about the transaction, under which, Rs.2,83,594/- became due to the 2nd respondent/ complainant. What he had stated in the complaint was that, in discharge of a legal liability, the accused issued a cheque in favour of the complainant. But PW1, the Manager of the 2nd respondent/complainant, produced Exts.P1 and P2 documents to show that Rs.2,83,594/- was due to the complainant, for purchase of materials on 21 different dates. The revision petitioner, in 313 questioning, admitted that for purchasing articles from the 2nd respondent/complainant, Ext.P4 cheque was issued by him. According to him, articles

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were supplied in eight deliveries and each time, he had given a cheque as security. But Ext.P2 document shows that, there were 21 deliveries on 21 dates. The revision petitioner

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failed to prove his case even by preponderance of probabilities that, Ext.P4 cheque was given only as a security, and the amount covered by that cheque was already paid by him. Moreover, Ext.P11, the copy of insolvency petition filed by the revision petitioner before Sub Court, Neyyattinkara, will show the 2nd respondent/ complainant as a creditor of the revision petitioner, and he was arrayed as 24th respondent in that petition. That petition schedule will show that, he owed Rs.2,83,594/- to the 2nd respondent/complainant, by way of a cheque. DW1 categorically admitted that in the schedule, he had shown the name of persons to whom money was due from him. He further admitted that the signature and handwriting in Ext.P4 belongs to him, though the date was not written by him.

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On going through the judgments of the courts below, it could be seen that they appreciated the facts and evidence in its correct perspective, and found the revision

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Crl.R.P No.2822 of 2008 9

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petitioner guilty under Section 138 of the NI Act. The revision petitioner could not rebut the presumption available in favour of the 2nd respondent/complainant under Sections 118 and 139 of the NI Act. Though the trial court sentenced him to undergo simple imprisonment for three months and compensation of Rs.2,83,594/-, the appellate court modified and reduced the substantive sentence to imprisonment till rising of court, retaining the compensation part with a default sentence of simple imprisonment for one month, and setting aside the cost amount ordered.

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The revision petitioner is a professional Doctor, and for construction of his multi speciality hospital, he purchased articles from the shop of the 2nd respondent/complainant on credit basis. May be due to financial stringency, he could not pay the amount. So the appellate court is justified in modifying and reducing the substantive sentence to imprisonment till rising of court, retaining the compensation amount, which was equivalent to the cheque amount. So

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Crl.R.P No.2822 of 2008 10

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this Court finds no reason to interfere with the impugned judgment, and it is only to be confirmed.

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Learned counsel for the revision petitioner submitted that Rs.1,25,000/- was deposited by the revision petitioner before the trial court, as per order of this Court, while suspending the sentence. He has no objection in the 2nd respondent/complainant withdrawing that amount. So, the 2nd respondent/complainant can withdraw that amount from the trial court. So the balance amount to be paid towards compensation is only Rs.1,58,594/-.

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The revision petitioner is directed to surrender before the trial court on or before 01.03.2024 to receive the sentence and to pay the balance amount of compensation, i.e., Rs.1,58,594/-, to the 2nd respondent/complainant. In the absence of the 2nd respondent/complainant to receive the amount, the revision petitioner can deposit the amount before the trial court. In default, he has to undergo simple imprisonment for 15 days. If the revision petitioner fails to

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appear as directed above, to receive the sentence, and to

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pay the compensation, the trial court has to execute the sentence without further delay.

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In the result, the revision petition stands dismissed. Registry is directed to transmit the case records to the

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trial court forthwith, for executing the sentence without delay.

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Sd/- SOPHY THOMAS, JUDGE

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DSV/-

Dr.Stanly Johns v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.Stanly Johns v. State of Kerala

Case brief

What is this about?

What did the court decide?

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