Kerala High Court
M.M.Abdul Hameed vs N.V.Somasundaram on 23 February, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 25TH DAY OF JUNE 2014/4TH ASHADHA, 1936
Crl.Rev.Pet.No. 1138 of 2014 ()
--------------------------------
AGAINST THE ORDER/JUDGMENT IN CRA 701/2002 of ADDL. DISTRICT COURT
(ADHOC), THALASSERY DATED 23-02-2008
AGAINST THE ORDER/JUDGMENT IN CC 345/2002 of ADDL.C.J.M.,THALASSERY
DATED 07-10-2002
REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED:
------------------------------------------------------------------------------------------------------------------------
M.M.ABDUL HAMEED
S/O. MUHAMMED KUNHI, M.K.HOUSE, VALLIKKAL
NEAR GOOD SHED ROAD, THALASSERY,KANNUR DISTRICT.
BY ADVS.SRI.C.P.PEETHAMBARAN
SMT.MINI.V.A.
RESPONDENT(S)/RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
------------------------------------------------------------------------------------------------------------------------
1. N.V.SOMASUNDARAM
S/O.KUNHIKRISHNAN NAIR, "SMRUTHI", P.O. NITTUR
ILLIKKUNNU, KANNUR DISTRICT.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.M.SASINDRAN
R BY PUBLIC PROSECUTOR SRI. GITHESH R
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
25-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sab
P.UBAID, J.
-----------------------------
Crl. R.P NO. 1138 OF 2014
---------------------------------------
Dated this the 25th day of June, 2014.
O R D E R
In July 2000, the first respondent herein sold a car to the revision petitioner for Rs.41,000/-. The revision petitioner made payment of only Rs.1,000/- and issued two cheques for the balance amount of Rs.40,000/-. When the first respondent presented the cheque for collection, the cheques were bounced due to insufficiency of funds. When the revision petitioner failed to make payment as demanded in the statutory notice, the first respondent, filed complaint before the Additional Chief Judicial Magistrate Court, Thalassery alleging the offence punishable under Section 138 of Negotiable Instruments Act.
2. The revision petitioner entered appearance in the trail court, pleaded not guilty, and claimed to be tried. The complainant examined himself as PW1 and marked Exts. P1 to P9 during trial. The accused examined himself as DW1 with permission under Crl. R.P NO. 1138 OF 2014 2 Section 315 Cr.P.C. On an appreciation of the evidence, the learned Magistrate found the revision petitioner guilty under Section 138 NI Act. On conviction, he was sentenced to undergo simple imprisonment for one year.
3. Aggrieved by the conviction and sentence the revision petitioner approached the Court of Session, Thalassery with Crl.A. 701/2002. In appeal the Learned Additional Sessions Judge (Adhoc- I) confirmed the conviction but modified the sentence. Accordingly, the jail sentence was reduced to simple imprisonment for one month, and a direction was also made by the appellate court to the revision petitioner, to make payment of a compensation of Rs.50,000/- under Section 357 (3) Cr.P.C. Now the accused is before this court in revision, challenging the legality and propriety of the conviction and sentence.
4. On hearing both sides and on a perusal of the case records I find no reason or ground to admit this revision to files. The complainant has given definite and consistent evidence proving the transaction in which the revision petitioner incurred a debt of Rs.40,000/- and also proving the execution Crl. R.P NO. 1138 OF 2014 3 of the Exts P1 to P2 cheques in discharge of the said debt. Exts.P3 and P4 documents will show that the cehques in question were bounced due to in sufficiency of funds. The revision petitioner has no case that he had funds in his account to honour the cheque or that cheques were bounced on some other ground. I find that the complainant has well proved the case on facts, that the Exts. P1 and P2 cheques were issued by the revision petitioner in discharge of a debt of Rs.40,000/-. Now we are in 2014. There is reason to believe that the revision petitioner has not made payment of any amount towards the debt for the last 14 years. The Ext. P6 statutory notice was sent by the complainant in time, and the complaint was also filed well within time. The revision petitioner has no case that he had made payment of the cheque amount as demanded in the notice, and he has also no explanation why he did not send reply to the statutory notice. In fact the debt is further proved by the Ext. P9 agreement and the Ext. P8 account. I find that the complainant has well proved the offence punishable under Section 138 NI Act with all the necessary elements and ingredients, and he has also proved Crl. R.P NO. 1138 OF 2014 4 compliance of the statutory requirements in initiating prosecution. I find no scope for interference in the conviction made by the courts below on the ground of any irregularity or impropriety or illegality.
5. Of course, there is a jail sentence of simple imprisonment for one month. The trial court imposed imprisonment for one year, but in appeal the appellate court reduced it to one month. During arguments the learned Counsel for the revision petitioner made a request to reduce the imprisonment to the minimum possible under the law. When this court asked whether the revision petitioner is willing to make payment of something more as compensation in lieu of reduction in sentence, the learned Counsel submitted that some reasonable amount can be added to the compensation. I feel that it would be appropriate and just to direct the revision petitioner to make payment of Rs.60,000/- as compensation when the debt admittedly stands not discharged for last 14 years. I feel that the jail sentence can be reduced to minimum possible under the law in the above circumstances. Subject to this modification in sentence in the presence of the complainant Crl. R.P NO. 1138 OF 2014 5 this revision can be dismissed in limine, without being admitted to files. The learned Counsel for the revision petitioner made a further request to grant some reasonable time to the revision petitioner to make payment of the compensation in the trial court. As already stated, the debt admittedly stands not discharged for last 14 years. In such a situation it would be unjust and inappropriate to grant time for four months. I feel that time for two months can be reasonably granted to discharge the debt by payment of compensation.
In the result, this revision petition is dismissed in limine without being admitted to files, confirming the conviction under Section 138 of Negotiable Instruments Act, however subject to modification in sentence as follows:
a. The jail sentence imposed by the courts below will stand reduced to imprisonment till rising of the court.
b. The amount of compensation awarded by the
appellate court will stand enhanced to Rs.60,000/-, with
a default sentence of simple imprisonment for
three months.
Crl. R.P NO. 1138 OF 2014
6
c. The revision petitioner will surrender before the trial
court within two months from this date to
serve out the sentence and make payment of the
compensation voluntarily, on failure of which steps shall
be taken by the trial court to enforce the sentence
and recover the amount of compensation, or enforce
the default sentence.
P.UBAID,
JUDGE
sab