Kerala High Court
Ranganathan vs H.Parasuraman on 2 April, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 2ND DAY OF APRIL 2013/12TH CHAITHRA 1935
Crl.Rev.Pet.No. 678 of 2013
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AGAINST THE JUDGMENT IN CRA.540/2012 of III ADDITIONAL SESSIONS COURT,
ERNAKULAM
AGAINST THE JUDGMENT IN CC.1408/2010 of JUDICIAL FIRST CLASS MAGISTRATE-
II, KOCHI
REVISION PETITIONER:
RANGANATHAN, AGED 78 YEARS
S/O LATE N.MATHIRAN CHETTIAR, 22/120
VARISHTA PRASADAM, NEAR GOVT.L.P. SCHOOL, KAMMANTHARA
THATHAMANGALAM P.O., PALAKKAD DISTRICT.
BY ADVS.SRI.ASOK M.CHERIAN
SRI.R.ROHITH
RESPONDENTS:
1. H.PARASURAMAN,
KANNAN AGENCIES, KOLETHERY SHOPPING COMPLEX
CHITTOOR ROAD, VALANJAMBALAM.EERNAKULAM 682 011.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R2 BY PUBLIC PROSECUTOR BIJU MEENATTOOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 02-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K. HARILAL, J.
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CRL.R.P.NO.678 of 2013
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Dated this the 2nd day of April 2013
ORDER
Revision Petitioner is the accused in C.C.No.1408/2010 on the files of the Court of Ju dicial First Class Magistrate-II, Kochi as well as the unsuccessful appellant in Crl.A.No.540/2012 of the III Additional Sessions Court, Ernakulam. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') on a complaint filed by the first respondent. After trial, the learned Magistrate found the Revision Petitioner/Accused guilty of the offence punishable under Section 138 of the N.I.Act and convicted thereunder. He was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.50,000/--under Section 138 of the N.I.Act. In default of payment of fine, the Accused shall undergo simple imprisonment for a further period of 15 days. The fine amount, if realised, shall be paid as compensation to the complainant under Section 357(1)(b)Cr.P.C. Though the Revision Petitioner Crl. R.P.678/2013 2 had preferred an appeal, the appellate court also confirmed the conviction and modified the sentence. The substantive sentence of simple imprisonment was modified to simple imprisonment till rising of court and sustained the order to pay fine with default sentence. This Revision petition is filed challenging the concurrent findings of conviction entered and modified sentence imposed on the Revision Petitioner.
2. The case of the complainant is that in discharge of a legally enforceable debt, the Revision Petitioner had issued a cheque dated 11/11/2009 for Rs.30,000/- from Canara Bank, Broadway Branch and Ext.P2 cheque dated 11/11/2009 for Rs.20,000/- drawn on City Union Bank Ltd, Ernakulam Branch. When the cheques were presented for encashment, the same were dishonoured with an endorsement 'Account closed'. Though the first respondent issued a statutory notice demanding the cheque amount, notice was returned as refused by the Revision Petitioner. In defence, the Revision Petitioner admitted his signature in Exts.P1 and P2 cheques. His version is that in 1999, he purchased some electrical goods worth Rs.5,000/- from the shop of the complainant on credit basis. At that time the complainant insisted for getting a cheque from him Crl. R.P.678/2013 3 as security. Again in 2001, the Revision Petitioner had to purchase a fan and some electrical appliances worth Rs.4,000/- from the shop of the complainant. At that time the complainant had obtained another signed blank cheque from him as security . His definite case is that Exts.P1 and P2 cheques were given to the complainant in 1999 and 2001 respectively as security.
3. To prove the execution and issuance of the cheque, the first respondent was examined as PW1 and Exts.P1 to P10 were marked. DW1 was examined and Exts.D1 to D3 were marked on the side of the Revision Petitioner. After analysing the evidence on record, the court below concurrently found that the first respondent has successfully discharged the initial burden of proof regarding the execution and issuance of the cheque, whereas the Revision Petitioner has miserably failed to rebut the presumption under Section 118(a) and 139 of the N.I.Act, which stood in favour of the first respondent complainant. Though the first respondent was cross examined at length into minute details, nothing brought out to discredit the issuance and execution of the cheques. The court below concurrently found that the debt due to the first respondent was legally enforceable debt and Exts.P1 and P2 were issued in discharge of that debt. Crl. R.P.678/2013 4 There is no illegality or impropriety in the judgment under challenge. I find no kind of perversity in the appreciation of evidence. In the absence of any kind of illegality or impropriety or perversity, this court is not inclined to invoke revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure. Consequently, the conviction is confirmed.
4. The learned counsel for the Revision Petitioner submits that the Revision Petitioner is willing to pay the fine amount as ordered by the court below, but he is unable to pay the amount forthwith as directed by the court below. He is ready to pay the fine within a reasonable time. The counsel for the Revision Petitioner prayed for eight months time to pay the amount of fine. In a prosecution under Section 138 of the N.I.Act, the compensatory aspect would get much priority than punitive aspect and the loss sustained can be restored by way of compensation under Section 357Cr.P.C.
5. Having regard to the facts and circumstances of the case, nature and gravity of the offence and submissions made by the learned counsel for the Revision Petitioner, six months time is given to the Revision Petitioner to pay the fine. Consequently, this Revision petition is disposed of subject to following terms: Crl. R.P.678/2013 5
1) The Revision Petitioner shall undergo substantive sentence of simple imprisonment till rising of court.
2) The Revision petitioner shall pay a fine of Rs.50,000/-
(Rupees fifty thousand)and the same shall be given to the first respondent/complainant as compensation under Section 357(1)
(b) Cr.P.C. within a period of six months from today.
3) The Revision Petitioner shall surrender before the trial court to suffer substantive sentence of simple imprisonment as ordered above on or before 03/10/2013 with sufficient proof to show the payment of compensation.
4) In default, the Revision Petitioner shall undergo simple imprisonment for two months.
The Revision petition is disposed of accordingly.
Sd/-
K. HARILAL,JUDGE ks.
True copy P.s.to Judge