Appeal against conviction under Section 138 NI Act. Court upheld conviction but modified compensation from Rs.20,000 to Rs.30,000 and sentence to till rising of court.
Sentenced to imprisonment till rising of court and paid compensation of Rs.30,000; balance Rs.20,000 to be deposited.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945
CRL.REV.PET NO. 3105 OF 2005
AGAINST THE ORDER/JUDGMENT CRA NO. 247/2002 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM CC 262/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR
REVISION PETITIONER/APPELLANT/ACCUSED:
P.LEEN, S/O. PETER, LALU NIVAS, VELLIMON MURI, KUNDARA VILLAGE, KOLLAM.
BY ADV SRI.A.AHZAR
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
BY ADVS. SRI.S.V.BALAKRISHNA IYER SR.
SRI.R.SURAJ KUMAR
OTHER PRESENT:
PP - M.C.ASHI
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P. No.3105 of 2005 1
VIJU ABRAHAM,J
Crl.R.P. No.3105 of 2005
Dated this the 14th day of September, 2023
ORDER
The accused in C.C.No.262/2000 on the file of
Judicial First Class Magistrate Court-III, Punalur being the appellant in Crl.Appeal No.247/2002 before the 1st Additional Sessions Judge, Kollam is the petitioner herein.
the court below against the petitioner on the
basis of a private complaint filed by the 1st respondent alleging the commission of offence punishable under Section 138 of the Negotiable Instruments Act, on the allegation that Ext.P1
cheque issued for an amount of 20,000/- in
discharge of a liability, when presented for encashment was dishonoured for the reason “funds insufficient”.
repaid. Before the trial court, PW1 was examined
and Exts.P1 to P5 were marked on the side of the
Crl.R.P. No.3105 of 2005 2
complainant. No evidence was adduced by the
accused. The trial court as per judgment dated
24.9.2022 convicted the accused to undergo
rigorous imprisonment for 15 days and also to pay compensation of Rs.20,000/- under Section 357(3) (c) of Cr.P.C.
Appeal No.247 of 2002, the same also ended in
dismissal. It is seen that when the matter came up for consideration before this court on 22.11.2005,
the execution of the sentence was suspended and
bail was granted on condition that the petitioner
executes a bond of Rs.10,000/- and deposit an
amount of Rs.10,000/- within 4 months from the
date of the order. A perusal of lower court
records would reveal that the amount has been deposited before the court below pursuant to the said interim order passed by this Court in the present revision petition.
for the appellant as well as the respondents.
Crl.R.P. No.3105 of 2005 3
reason “funds insufficient”, as is evident from Ext.P2. Ext.P3 lawyer notice dated 2.11.1999 was sent and Ext.P4 postal receipt would show that Ext.P3 notice was registered on 3.11.1999 and
therefore, Ext.P3 was issued within a period of 15 days of receipt of Ext.P2 dishonour memo and the same was accepted by the petitioner on 4.11.1999,
as is evident from Ext.P5 acknowledgment card. The complaint was filed on 13.12.1999 and therefore, the complaint is filed within one month of the cause of action. Therefore, it could be safely
concluded that all the procedural formalities have been complied with. It is seen that the complaint has been filed by legal heir of one Susheela, who is none other than her husband. The trial court after consideration of the evidence adduced found that the initial presumption has been proved by
the complainant and the revision
petitioner/accused, could not rebut the said
presumption by adducing cogent evidence. The said finding has been upheld by the appellate court after elaborately considering the rival
Crl.R.P. No.3105 of 2005 4
contentions on parties.
as well as the appellate court has properly considered the evidence adduced and the contentions raised by both sides and I find no reason to interfere with the conviction imposed by
the trial court which is confirmed by the appellate court. The trial court has sentenced the accused to undergo simple imprisonment for 15 days
and to pay compensation of Rs.20,000/-. While
confirming the conviction, I am inclined to modify the sentence as follows:
The petitioner/accused is sentenced to
undergo imprisonment till rising of the court and to pay a compensation of Rs.30,000/- under Section
357(3)(c) of Cr.P.C. In default of payment of compensation, the petitioner shall undergo simple imprisonment for a period of 10 days. An amount of Rs.10,000/- is seen deposited as per the interim order passed by this Court on 22.11.2005, and therefore the petitioner shall deposit the balance
Crl.R.P. No.3105 of 2005 5
amount of Rs.20,000/- towards compensation. The compensation amount if realised, the entire amount
shall be paid to the 1st respondent herein/complainant in C.C.No.262 of 2000 on the
file of Judicial First Class Magistrate Court-III, Punalur. The learned Magistrate shall take the necessary steps to execute the modified sentence hereby imposed.
The criminal revision petition is disposed of
as above.
sd/-
VIJU ABRAHAM, JUDGE
pm
2 issues framed by the court
Whether the procedural formalities for issuing a cheque withdrawal complaint were properly complied with.
Whether the trial court findings on proof of presumption are sustainable.
2 provisions across 2 enactments
P.LEEN
SAJI M.
VIJU ABRAHAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
