Partly allowed

Gracy Moncy v. Sree Gokulam Chits and Finance Company Private Limited

Kerala HC25 Sept 2023Crl.Rev.Pet/710/2023

Case brief

AI extract

What is this about?

In criminal appeal by the appellant-accused against the conviction and sentence, involving a cheque dishonour case, the Kerala High Court upheld the conviction but modified the sentence to include deposit of compensation before execution of imprisonment.

What did the court decide?

Conviction upheld but sentence modified; appellant directed to pay Rs. 70,467/- compensation; imprisonment to run for six months in default.

Gracy Moncy Vs Sree Gokulam Chits and Finance Company… — 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 N.NAGARESH

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MONDAY, THE 25^TH DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945

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CRL.REV.PET NO. 710 OF 2023

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AGAINST THE JUDGMENT IN CRA.148/2018 OF ADDITIONAL SESSIONS JUDGE-IV, THODUPUZHA AND THE JUDGMENT IN ST.376/2015 OF CHIEF JUDICIAL MAGISTRATE, THODUPUZHA

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REVISION PETITIONER/APPELLANT/ACCUSED:

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GRACY MONCY AGED 73 YEARS W/O MONCY VARKEY, MANAMEL HOUSE, NELLIKUZHI P.O., ERAMALLOOR, THRIKKARIYOOR, KOTHAMANGALAM, ERNAKULAM, PIN – 686691

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BY ADV R.DIVAKARAN RAMAKRISHNAN

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

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1 SREE GOKULAM CHITS AND FINANCE COMPANY PRIVATE LIMITED REPRESENTED BY ITS POWER OF ATTORNEY HOLDER JOMY M.C SENIOR BUSINESS MANAGER, THODUPUZHA, PIN - 686691

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2 STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031

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BY ADV SRI.MAHESH V RAMAKRISHNAN-R1 SRI.M.P. PRASANTH, PUBLIC PROSECUOR-R2

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Crl.R.P. No.710/2023

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N. NAGARESH, J.

Crl.R.P. No.710 of 2023

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Dated this the 25^th day of September, 2023

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O R D E R

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~ ~ ~ ~ ~ ~

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The petitioner is the accused in S.T. Case No.376/2015 in the Court of the Chief Judicial Magistrate, Thodupuzha and the appellant in Criminal Appeal No.148/2018 in the Court of the Additional Sessions JudgeIV, Thodupuzha.

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The petitioner is aggrieved by the judgments passed by the courts below whereunder the petitioner stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. The Chief Judicial Magistrate convicted and sentenced the petitioner to undergo simple imprisonment till rising of the Court and to pay a compensation of ₹1,70,467/- to the 1^st respondent-

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Crl.R.P. No.710/2023

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complainant. In default of payment of compensation amount, the petitioner was ordered to undergo simple imprisonment for six months.

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The 1^st respondent-complainant is a Chit and Finance Company. The 1^st respondent alleged that the husband of the petitioner bid a chitty of ₹3 lakhs and received the prized amount. The petitioner stood as a guarantor to the subscriber. When the chitty amount was defaulted, the petitioner came to the office, verified the accounts and thereafter executed a cheque for ₹1,70,467/- in discharge of debt. The cheque when presented, was dishonoured for the reason “insufficient funds”. Though the 1^st respondent issued notice, the petitioner did not make payment.

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PWs1 to 3 were examined on the side of the prosecution and DW1 for the defence. Exts.P1 to P8 documents were marked for the prosecution. Ext.D1 was marked for the defence and Ext.X1 as court document. The Chief Judicial Magistrate found that the 1^st respondent has

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Crl.R.P. No.710/2023

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succeeded in proving that the accused has committed an offence punishable under Section 138. Accordingly, the petitioner was convicted.

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The Court of the Additional Sessions Judge-IV considered the appeal filed by the petitioner and held that the 1^st respondent has established that the petitioner issued Ext.P5 cheque for a legally enforceable debt and it was returned unpaid due to insufficiency of funds in the account of the petitioner. The Additional Sessions Judge-IV consequently confirmed the conviction and sentence passed against the petitioner.

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Counsel for the revision petitioner argued that the judgments of the courts below are unsustainable. The petitioner has not issued Ext.P5 cheque to the 1^st respondent. The 1^st respondent misused the blank cheque leaves of the petitioner.

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On behalf of the petitioner, it is pointed out that the allegation in the complaint that the petitioner and her husband came to the office of the 1^st respondent on

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Crl.R.P. No.710/2023

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03.08.2015 and issued Ext.P5 cheque, is false because the petitioner's husband passed away on 15.08.2012.

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The petitioner further argued that the 1^st respondent failed to prove the transaction between the petitioner and the 1^st respondent. The appellate court, without perusing the documents and evidence, confirmed the conviction and sentence of the petitioner.

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I have heard the learned counsel for the petitioner,

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the learned counsel appearing for the 1^st respondent and the learned Public Prosecutor representing the 2^nd respondent.

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The petitioner would contend that it is stated in the complaint that the husband of the petitioner was with her at the time of issuing cheque on 03.08.2015. In fact, the petitioner's husband passed away on 15.08.2012. The Sessions Court noted that the word “subscriber” seen in the proof affidavit of PW1 is only a clerical mistake which is immaterial. Though PW1 does not have direct knowledge regarding the transaction, on behalf of the 1^st respondent, PW3 who is the Branch Manager of the Company was

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Crl.R.P. No.710/2023

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examined. PW3 stated that the revision petitioner executed the cheque in his presence. Therefore, the execution of cheque by the petitioner stands proved.

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The petitioner would further argue that the cheque was dishonoured on 03.08.2015 and statutory notice was issued on 04.09.2015, which is beyond the statutory period and hence the complaint of the 1^st respondent is liable to be rejected. I find that the courts below have taken into consideration Ext.X1 which is the intimation regarding the intimation of dishonour issued by the Banker. The intimation was issued only on 13.08.2015. Therefore, the statutory notice issued on 04.09.2015 is clearly within the statutory period.

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In view of the afore facts, I do not find any illegality in the judgments of the courts below. However, going through the materials available, I find that this Court on 10.07.2023 directed the petitioner to deposit ₹1 lakh towards the fine imposed as a condition for suspension of sentence. Parties on either side would admit that the petitioner has

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Crl.R.P. No.710/2023

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: 7 :

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remitted the said amount.

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The petitioner is the wife of the person who actually incurred the liability towards the 1^st respondent. The petitioner's husband passed away in the year 2012.

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In the afore facts and circumstances of the case, while upholding the conviction of the petitioner, the sentence imposed by the courts below is modified as follows:-

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Apart from ₹1 lakh deposited by the petitioner pursuant to the order dated 10.07.2023, the petitioner shall deposit ₹70,467/- as compensation, which amount shall be deposited in the court of the Chief Judicial Magistrate, Thodupuzha within a period of two months, that is, on or before 24.11.2023. The petitioner is convicted to undergo simple imprisonment till rising of the court and the petitioner shall appear before the court of the Chief Judicial Magistrate, Thodupuzha on 27.11.2023 for execution of the sentence. In default of payment of the compensation amount as directed above, the petitioner will have to undergo simple imprisonment for six months. The amount deposited by the

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Crl.R.P. No.710/2023

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petitioner shall be released to the 1^st respondent as

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compensation.

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Crl.R.P. is disposed of as above.

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Sd/-

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N. NAGARESH, JUDGE

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aks/25.09.2023

Gracy Moncy v. Sree Gokulam Chits and Finance Company Private Limited

Case brief

What is this about?

What did the court decide?

Gracy Moncy v. Sree Gokulam Chits and Finance Company Private Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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