Kerala High Court
E.T.Manoharan vs K.T.Madhavan Nair on 16 January, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940
Crl.Rev.Pet.No.2060 of 2003
-----------------------------------------------
AGAINST THE JUDGMENT IN CRA 193/2000 of SESSIONS COURT,
KOZHIKODE DATED 16-01-2003
AGAINST THE JUDGMENT IN CC 645/1997 of JUDICIAL FIRST CLASS
MAGISTRATE'S COURT-III, KOZHIKODE DATED 31.03.2000
REVISION PETITIONER/APPELLANT/ACCUSED :-
-----------------------------------------
E.T.MANOHARAN,
S/O.SREEDHARAN NAIR,
ERANJOTH THAZHATH HOUSE,
P.O.KOODATHUMPOYIL MAKKADA,
KOZHIKODE DISTRICT.
BY ADV.SRI.P.K.RAMKUMAR
RESPONDENT(S)/RESPONDENT(S)/COMPLAINANT :-
-------------------------------------------
K.T.MADHAVAN NAIR,
S/O.K.KRISHNA KURUP, AGED 66 YEARS,
KOODATHUMPOYIL MAKKADA,
KOZHIKODE DISTRICT.
ADDITIONAL R2 AND R3 IMPLEADED
ADDITIONAL R2 :
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
IS SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENT NO.2 AS PER
ORDER DATED 08.08.2016 IN CRL.R.P.2060/2003.
ADDITIONAL R3 :
SHYAMA, D/O.MADHAVAN NAIR,
MAYOOGHAM,
PUTHIYANGADI P.O.,
KOZHIKODE.
IS IMPLEADED AS ADDITIONAL RESPONDENT NO.3 AS PER ORDER DATED
08.08.2016 IN CRL.M.A.4875/2016 IN CRL.R.P.2060/2003.
R BY ADV. SRI.B.PREMNATH
R2 BY SRI.C.M.KAMMAPPU, SR.PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-07-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rkj
P.UBAID, J.
================================
Crl.R.P.No.2060 of 2003
================================
Dated this the 4th day of July, 2018
ORDER
The revision petitioner herein is the accused in C.C.No.645 of 1997 of the Judicial First Class Magistrate's Court-III, Kozhikode, and the first respondent herein is the complainant therein. The complainant brought the said prosecution under Section 138 of the Negotiable Instruments Act on the allegation that a cheque for Rs.17,975/- issued by the accused in his favour in discharging the amount due from him was bounced due to insufficiency of funds, and inspite of statutory notice the accused failed to make payment of the cheque amount.
2. The accused appeared before the learned Magistrate, and pleaded not guilty when the substance of the accusation was read over and explained to him. The complainant adduced oral and documentary evidence in the trial court. The accused did not adduce any defence evidence. He denied the incriminating circumstances, and projected a defence that he has already made payment of the amount due as per the cheque. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for four months under Section 138 of the NI Act. Crl.R.P.No.2060 of 2003 2
3. Aggrieved by the judgment of conviction dated 31.03.2000, the accused approached the Court of Session, Kozhikode with Crl.Appeal No.193 of 2000. In appeal, the learned Additional Sessions Judge confirmed the conviction and sentence, and accordingly dismissed the appeal.
4. This revision petition was admitted long back in 2003. When the revision petition came up for final hearing on 23.05.2018, the learned counsel submitted that he has no instruction from the party. There was no representation for the additional respondents also. The original first respondent died pending the proceeding, and so, his legal representatives were impleaded as additional respondents 2 and 3, and they were permitted to contest the revision. They also received notice from the Court, but they remained absent. The revision is now being decided by me on merits in the absence of both the parties.
5. The deceased first respondent was examined as PW1 in the trial court. He has given evidence proving the transaction between him and the accused, the liability that arose during the said transaction of partnership business, and also the execution of the Ext.P1 cheque by the accused. His case is that a total amount of Rs.1,61,070/- was due from the accused, and in discharging the said liability, the accused had issued nine cheques. The Ext.P1 cheque involved in this case is only one of the nine cheques. The complainant has also proved bouncing of Crl.R.P.No.2060 of 2003 3 the said cheque due to insufficiency of funds. Ext.P3 series contain the copy of the statutory notice sent to the accused by the complainant, and Ext.P2 memo shows that the cheque was bounced due to insufficiency of funds. The accused has no case that he had sufficient funds in his account to honour the cheque, or that the cheque was bounced on some other ground. I find that the complainant brought the complaint well within time after complying with the statutory requirements. The essentials are also proved by him. I find that the accused was rightly found guilty and convicted by the trial court under Section 138 of the NI Act. I find no reason for interference in the findings or the conviction made by the courts below concurrently against him.
6. The cheque amount involved in this case is only Rs.17,975/-. The cheque was issued in September 1995. Twenty Three years have lapsed since the execution. Even according to the complainant, the said liability was incurred in connection with their joint business, and the accused has already made payment of the amount covered by some other cheques. It appears that the complainant's concern is only to get the amount due, and not to send the complainant to jail. I feel that the minimum possible sentence, and also a direction to pay adequate amount of compensation to the complainant will do justice to the both sides.
In the result, the conviction against the revision petitioner under Section 138 of NI Act in C.C.No.645 of 1997 of the Crl.R.P.No.2060 of 2003 4 Judicial First Class Magistrate's Court-III, Kozhikode is confirmed, and the revision petition is disposed of accordingly. However, the sentence will stand modified as follows;
a) The jail sentence imposed by the court below will stand modified and reduced to imprisonment till rising of the Court.
b) In lieu of modification in sentence, the revision petitioner is directed under Section 357(4) Cr.P.C. to pay a compensation of Rs.30,000/- (Rupees Thirty Thousand only) to the additional respondents 2 and 3. In case of default, the accused will have to undergo a default sentence of simple imprisonment for three months.
c) The additional respondents 2 and 3 will receive the amount of compensation on behalf of all the legal heirs of the deceased complainant. The revision petitioner will surrender before the trial court within three weeks from this date to serve out the modified sentence, and to make payment of the compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the modified sentence, and realise the amount of compensation, or enforce the default sentence.
Sd/-
rkj P.UBAID, JUDGE