Kerala High Court
Zakkir Hussain vs T.V.Prabhakaran on 17 July, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY,THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939
Crl.Rev.Pet.No. 1741 of 2016 ()
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AGAINST THE ORDER/JUDGMENT IN CRA 294/2012 of I ADDL.SESSIONS JUDGE-I
TRIVANDRUM DATED 17.07.2016
IN ST 4043/2009 of J.F.M.C.-I,TRIVANDRUM DATED 26.06.2012
PETITIONER/APPELLANT/ACCUSED:
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ZAKKIR HUSSAIN,
AGED 40 YEARS, S/O SHAMSUDEEN,
PANIKKANVILAKATHU VEEDU, TEMPLE LANE, ELAMKULAM,
SKRA-A60, SREEKARYAM P.O,
THIRUVANANTHAPURAM PIN 695 017.
BY ADV. SRI.ALIAS M.CHERIAN
RESPONDENT(S)/RESPONDENTS/COMPLAINANT:
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1. T.V.PRABHAKARAN,
S/O VELU, ASWATHY TC 5/1253, MMRA-E7,
MUTTAMPARAMBATHU LANE, SREEKARYAM P.O,
THIRUVANANTHAPURAM PIN - 695 017.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031.
R1 BY ADVS. SRI.K.P.VIJAYAN
SRI.V.N.HARIDAS
R2 BY SRI.JUSTIN MATHEW, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
20-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
DG
Crl.Rev.Pet.No. 1741 of 2016 ()
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE- A1: COPY OF THE JUDGMENT IN CRIMINAL APPEAL
NO.294/2012 DATED 12.7.2016.
ANNEXURE - A2: COPY OF THE ORDER IN S.T.NO.4043/2009 DATED
26.06.2012.
RESPONDENT'S EXHIBITS:
NIL
TRUE COPY
P.A.TO JUDGE
ALEXANDER THOMAS, J.
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Crl.R.P.No.1741 of 2016
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Dated this the 20th day of June, 2017
O R D E R
Petitioner is the accused for offence punishable under section 138 of the Negotiable Instruments Act in S.T.No.4043 of 2009 on the file of the Judicial First Class Magistrate Court-I, Thiruvananthapuram, instituted on a complaint filed by the 1st respondent herein. The trial court as per the impugned judgment rendered on 26.06.2012 has convicted the petitioner and sentenced him to pay a fine of 2,54,000/- and on default thereof the accused to undergo simple imprisonment for six months. The fine so realized from the petitioner will be paid to the complainant as compensation under Section 357 (1) (b) of Cr.P.C. Aggrieved thereby the petitioner preferred Crl.A.No.294 of 2012 before the Court of Addl.Sessions Judge-I, Thiruvananthapuram and the appellate court as per the impugned judgment dated 12.07.2016 has dismissed the said appeal and thereby confirmed the impugned conviction and sentence. Challenging the above said concurrent orders of both the court below the petitioner had preferred the instant revision petition by taking recourse to the remedies under Section 397 read with Section 401 of the Code of Criminal Procedure. Crl.R.P.No.1741/16 2
2. Heard Sri.Alias M.Cheriyan, learned counsel appearing for the revision petitioner (accused), Sri.V.N.Haridas, learned counsel appearing for the 1st respondent (complainant) and Sri.Justine Mathew, learned Public Prosecutor appearing for the 2nd respondent/State.
3. The gist of the prosecution case is that towards discharge of a liability of Rs.2,00,000/- the revision petitioner/accused had issued the instant Ext.P1 cheque dated 15.09.2009 for 2,00,000/- drawn from his account in favour of the complaint. On presentation, said cheque was dishonoured on the ground of insufficiency of funds as per Ext.R2 memo dated 25.09.2009. Thereupon the complainant had preferred Ext.P3 statutory demand notice dated 12.10.2009 calling upon the accused to pay the cheque amount, which was duly served on the accused as per Ext.P5. Ext.P6 reply notice was issued by the accused denying the transaction. The complainant after following the requisite formalities in that regard preferred this complaint. During the trial the complainant was examined as PW1, and marked Exts.P1 to P7 documents. The accused has examined DW1 and has marked Ext.D1 document.
4. On a careful assessment of the impugned judgments Crl.R.P.No.1741/16 3 of both the courts below, it is seen that the courts below, after due evaluation of the oral and documentary evidence has come to a conclusion that the revision petitioner has executed Ext.P1 cheque as contemplated under Section 139 of the Negotiable Instruments Act. Defence set up by the revision petitioner was also repelled by the court below. In view of the concurrent findings of facts, this Court will not be justified in exercising revisional powers so as to interfere with the said findings of facts regarding the condition of the petitioner, unless the findings are vitiated by perversity, unreasonableness or illegality. No facts and circumstances have been brought to the notice of this Court to establish that the findings entered by both the courts below are perverse, unreasonable or illegal. The petitioner could not establish that the impugned judgments of the courts below suffer from any grave illegality or impropriety. In these circumstances, this Court is of the considered view that concurrent findings arrived at by both the courts below that the petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act does not warrant any interference of this Court.
5. As regards question of sentence, it is seen that the Crl.R.P.No.1741/16 4 cheque amount is only for 2,00,000/- and the trial court has imposed a fine of 2,54,000/- with the default clause of six months and that the fine realized can be paid as compensation. The petitioner's counsel has pointed out that the petitioner is an autorikshaw driver and that he happened to be the tenant of the complainant. Further that in case this Court is inclined to confirm the conviction, then fine amount may be reduced to the cheque amount, i.e., Rs.2,00,000/- and that the petitioner may be given ten months time to pay the above said amount. The learned counsel appearing for the 1st respondent/complainant has no serious objection in reducing the fine amount as 2,00,000/-, which is the cheque amount and further that this Court may not grant time by more than eight months. In the light of these aspects following directions are issued:
6. The impugned conviction and sentence imposed on the petitioner for offence punishable under Section 138 of Negotiable Instruments Act stands modified.
i) The impugned sentence to pay a fine of Rs.2,54,000/- will stand modified and reduced to 2,00,000/-. The default sentence clause will stand reduced to three months.
ii) Petitioner is given eight months time from Crl.R.P.No.1741/16 5 01.07.2017 to pay the said amount directly to the complainant. On receipt of such payment directly, the complainant shall issue necessary receipt of payment, so that the accused can produce the same before the trial court. Any such payment directly made by the petitioner may be treated as those amounts has been paid as fine under Section 357 Cr.P.C.
iii) Petitioner will personally appear before the trial court at 11 a.m on 03.03.2018 to satisfy the trial court about the payment of the total amount of 2,00,000/-. On default of the petitioner to pay the amounts he has to undergo sentence for a period of three months. Until 03.03.2018 all further coercive steps in terms of the impugned judgment will stand deferred.
iv) On default of the petitioner either to appear before the trial court on 03.03.18 or on default to pay the fine amount, the trial court will be at liberty to proceed against the revision petitioenr, in accordance with law. Criminal Revision Petition is finally disposed of.
Sd/-
(ALEXANDER THOMAS, JUDGE) TRUE COPY P.A.TO JUDGE DG Crl.R.P.No.1741/16 6