Kerala High Court
Kuttanad Central School vs G.Anoopkumar on 9 September, 2010
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2580 of 2010()
1. KUTTANAD CENTRAL SCHOOL
... Petitioner
2. T.N.VIJAYAN,
Vs
1. G.ANOOPKUMAR, S/O.GOPINATHAN NAIR,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.A.CHACKO
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :09/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2580 of 2010
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Dated this the 9th day of September, 2010.
O R D E R
The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below.
2. The case of the complainant is that, the 2nd accused/ revision petitioner being the Director of the 1st accused School, obtained a sum of Rs.60,000/- from the complainant on the promise to pay the interest and towards the discharge of the liability arose out of that transaction, the 2nd accused issued a cheque dated 19.11.2007 for a sum of Rs.60,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said 2 Crl. R.P.No.2580 of 2010 allegation, the complainant approached the Judl. First Class Magistrate Court-I, Alleppey, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.33/08. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P9(a) were marked, from the side of the complainant. Though no oral evidence adduced from the side of the defence, Exts.D1 and D2 were produced and marked. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the 2nd accused/revision petitioner to undergo simple imprisonment for one day simple imprisonment ie., till the rising of 3 Crl. R.P.No.2580 of 2010 the court and also directed to pay a compensation of Rs.60,000/- to the complainant and the default sentence was fixed as 3 months simple imprisonment.
3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 27.5.2010 in Crl.A.134/09, the Court of Addl. Sessions Judge (Fast Track-II), Alleppey, dismissed the appeal, confirming the conviction and sentence of imprisonment imposed against the revision petitioner but converting the compensation imposed, into fine. It is the above conviction and sentence challenged in this revision petition.
4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below.
5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out 4 Crl. R.P.No.2580 of 2010 to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved.
6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to slight enhancement in the fine amount, especially when there is no substantive sentence of imprisonment ordered by the courts below.
7. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 5 Crl. R.P.No.2580 of 2010 19.11.2007, for an amount of Rs.60,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.60,000/-, which belonged to the complainant is with the revision petitioner for the last 3 years. So, while granting some time to pay the fine amount, the amount can be enhanced slightly.
In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, while maintaining the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is sentenced to pay a fine of Rs.67,500/-, within 3 months from today and in case of any default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 9.12.2010, to receive the sentence of imprisonment and to pay the fine amount. In case any failure on the part of the revision petitioner in appearing 6 Crl. R.P.No.2580 of 2010 before the court below as directed above and in paying the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. On realisation of the fine amount, a sum of Rs.65,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The coercive steps if any shall be deferred till 9.12.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN, Judge.
ami/