Kerala High Court
Bino Joseph vs The Kottayam Urban Welfare ... on 20 March, 2013
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 14TH DAY OF MAY 2013/24TH VAISAKHA 1935
Crl.Rev.Pet.No. 942 of 2013 ()
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AGAINST THE JUDGMENT IN Crl. A 423/2011 of ADDL.SESSIONS COURT
(ADHOC)-II, KOTTAYAM DATED 20-03-2013
AGAINST THE JUDGMENT IN ST 148/2011 of JUDICIAL FIRST CLASS
MAGISTRATE-V, KOTTAYAM DATED 15.10.2011
REVISION PETITIONER/APPELLANT/ACCUSED:
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BINO JOSEPH,
MEDAYIL HOUSE, ERICADU P.O., PUTHUPALLY,
KOTTAYAM.
BY ADV. SRI.GOKUL DAS V.V.H.
RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
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1. THE KOTTAYAM URBAN WELFARE CO-OPERATIVE SOCIETY
NO.1015, REPRESENTED BY ITS SECRETARY SINI MATHEW,
PIN- 686001.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PORSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SMT. MADHU BEN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 14-05-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
DSV/-
K. RAMAKRISHNAN, J.
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Crl.R.P.NO. 942 OF 2013
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Dated this the 14th day of May, 2013
O R D E R
When the revision came up for hearing for admission, I felt that it is not necessary to call for the records or issue notice to the first respondent to dispose of the case and the revision petition can be disposed of on the admission stage itself.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
3. The revision petitioner is the accused in S.T.No.148/2011 on the file of the Judicial First Class Magistrate-V, Kottayam. It was taken on file on the basis of a private complaint filed by the first respondent under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). The case of the complainant is that the revision petitioner obtained a daily collection loan from the complainant Society by filing Exhibit P2 loan application and later issued Exhibit P3 cheque for Rs.74,388/- was issued towards the discharge of the liability in favour of the Society as seen in Exhibit P8 loan ledger. When the complainant presented the cheque for collection, the same was dishonoured for the reasons "funds insufficient" in the account of the accused Crl.R.P.NO. 942 OF 2013 2 as per Exhibit P4 dishonour memo. The complainant issued Exhibit P6 notice dated 30.08.2007 to the accused, who is the revision petitioner herein, intimating the dishonour and demanding payment of the amount. The same was returned unclaimed in spite of intimation given evidenced by Exhibit P7 returned notice. Since the accused had not paid the amount, on the basis of authorisation given by the Board of Directors of the Society as per Exhibit P1 minutes, the complaint was filed by the Secretary of the first respondent society. After evidence, the lower court found the appellant guilty under Section 138 of the Negotiable Instruments Act and convicted him thereunder and sentenced to undergo simple imprisonment for six months and also to pay a compensation of Rs.74,388/- to the complainant under Section 357(3)of the Code of Criminal Procedure in default, to undergo simple imprisonment for 60 days.
4. Aggrieved by the same, the revision petitioner filed an appeal before the Sessions Court, Kottayam as Crl.Appeal No.423 of 2011 and the Additional Sessions Judge (Adhoc-II), Kottayam by judgment dated 20.03.2013 confirmed the order of conviction passed by the court below and also confirmed the Crl.R.P.NO. 942 OF 2013 3 order of payment of compensation and default sentence but reduced to substantive sentence to imprisonment till the rising of court and directed the revision petitioner to surrender before the court below on 18.04.2013 to suffer the sentence. Aggrieved by the same, the present revision petition has been filed by the dissatisfied accused before the lower court.
5. On going though the concurrent judgments passed by the courts below, I do not find any reason to interfere with the order of conviction passed by the court below, as no acceptable evidence was adduced on the side of the accused, though he was examined as DW1, to rebut the presumption under Section 139 of the Act and also the discharge pleaded by him. So I do not find any reason to interfere with the concurrent finding of the courts below regarding conviction imposed against the revision petitioner under Section 138 of the Act. Regarding the sentence is concerned, the appellate court had reduced substantive sentence to imprisonment till the rising of court and I do not find any reason to interfere with the same as well. The counsel for the revision petitioner wanted only some time for payment of the amount.
Crl.R.P.NO. 942 OF 2013 4
6. So considering the circumstances, I feel, granting time till 31.08.2013 to pay the compensation to the complainant and produce receipt of the same before the court below will be sufficient and that will meet the ends of justice. So revision petitioner is directed to appear before the court below on 31.08.2013 to receive the sentence. Till then the trial court is directed to keep the execution of sentence in abeyance. If he did not surrender on or before that day to comply with the condition imposed by the appellate court, then the trial court is at liberty to take coercive steps to execute the order. Communicate the order to the lower court immediately.
With the above observation and direction, this revision petition is disposed of.
Sd/-
K. RAMAKRISHNAN, JUDGE.
// TRUE COPY // P.A. TO JUDGE DSV/-