Kerala High Court
Sreenivasan vs O.Janardhanan on 26 November, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940
Crl.Rev.Pet.No. 23 of 2006
IN CRA 144/2002 of ADDL.DISTRICT COURT (ADHOC)-II, PALAKKAD DATED 26-11-2005
IN ST 301/2000 of J.M.F.C., PATTAMBI DATED 23-04-2002
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
SREENIVASAN, S/O.PADMANABHAN,
AGED 42 YEARS, RESIDING AT KANNATH HOUSE,, KUTTIPPURAM
AMSOM, KUTTIPPURAM P.O.,MALAPPURAM.
BY ADV.SRI.RAJESH SIVARAMANKUTTY
RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE::
1. O.JANARDHANAN, S/O.GOPALAN,
SHAJI BHAVAN, NETHIRIMANGALAM AMSOM,VALLOOR DESOM,,
P.O.SANKARAMANGALAM, OTTAPPALAM TALUK,, PALAKKAD DIST.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,,
HIGH COURT OF KERALA, ERNAKULAM.
Addl.3. USHA JANARDHANAN, W/O JANARDHANAN, AGED 59 YEARS,
SHAJI BHAVAN, NETHIRIMANGALAM AMSOM,
VALLOOR DESOM PO, SANKARAMANGALAM,
OTTAPALAM TALUK, PALAKKAD DISTRICT.
Addl.4. SHAJI, S/O O.JANARDHANAN, AGED 39 YEARS,
SHAJI BHAVAN, NETHIRIMANGALAM AMSOM,
VALLOOR DESOM PO, SANKARAMANGALAM,
OTTAPALAM TALUK, PALAKKAD DISTRICT
Addl.5. SHYJU S/O JANARDHANAN,
AGED 38 YEARS, SHAJI BHAVAN, NETHIRIMANGALAM AMSOM,
VALLOOR DESOM PO, SANKARAMANGALAM,
OTTAPALAM TALUK, PALAKKAD DISTRICT.
Addl.6. SHYINI, D/O JANARDHANAN,
AGED 37 YEARS, SHAJI BHAVAN, NETHIRIMANGALAM AMSOM,
VALLOOR DESOM PO, SANKARAMANGALAM,
OTTAPALAM TALUK, PALAKKAD DISTRICT
ADDL. R3 TO R5 ARE IMPLEADED AS RESPONDENTS 3 TO 6 RESPECTIVELY AS PER ORDER
DATED 05.04.2018 IN CRL.M.A. NO. 2058 IN CRL.R.P. 23/2006.
R3 TO R5 BY ADV. SRI.SEBIN THOMAS
R3 TO R5 BY ADV. SRI.VIVEK V. KANNANKERI
R3 TO R5 BY ADV. SRI.AKHIL BHASKAR
BY PUBLIC PROSECUTOR SRI. C.K. PRASAD
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-07-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ds
P.UBAID, J.
----------------------
Crl.R.P. No. 23 of 2006
-------------------------
Dated this the 12th day of July, 2018
ORDER
The revision petitioner herein challenges the conviction and sentence against him under Section 138 of the Negotiable Instruments Act in ST 301/2000 of the Judicial First Class Magistrate Court, Pattambi. The deceased 1 st respondent is the complainant therein. He brought complaint on the allegation that a cheque issued by the accused for Rs.40,000/- in his favour in discharge of the amount borrowed by him was bounced due to insufficiency of funds, and the accused failed to make payment in spite of demand made by statutory notice.
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 examined two witnesses including himself and proved Exts. P1 to P7 documents in the trial court. The accused denied the incriminating circumstances when Crl.R.P. No. 23 of 2006 -2- examined under Section 313 Cr.P.C, and projected a defence that he had no transaction with the complainant, that he had borrowed an amount of Rs.15,000/- from one Sunil Kumar to whom he had handed over a blank cheque as security and that the complainant somehow procured the said cheque from Anil Kumar and brought a false complaint against him. The accused examined himself as DW1 in defence with the permission of the trial court under Section 315 Cr.P.C.
3. On an appreciation of the evidence adduced on both sides, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for three months and he was also directed to pay a compensation of Rs.43,000/- to the complainant under Section 357 (3) Cr.P.C.
4. Aggrieved by the judgment of conviction dated 23.4.2002, the accused approached the Court of Session, Palakkad with Crl.A No.144/2002. In appeal, the learned Additional Sessions Judge (Adhoc-II) Palakkad Crl.R.P. No. 23 of 2006 -3- confirmed the conviction, but modified the sentence. The substantive sentence was accordingly reduced to simple imprisonment for one month and the direction to pay compensation was maintained. Now the accused is before this court in revision challenging the legality and propriety of the conviction and sentence.
5. On hearing both sides, and on a perusal of the materials, I find no scope or reason for interference in the findings or the conviction made by the courts below concurrently against the revision petitioner, on the ground of any illegality or irregularity or impropriety. The complainant examined as PW1 has given evidence proving the transaction of borrowal, the debt incurred by the accused, and also the execution of Ext.P1 cheque in discharge of the said liability. The evidence given by the complainant stands not discredited. When such evidence is there, the complainant can very well avail the presumption under Section 139 of the NI Act. PW2, the Bank Manager was Crl.R.P. No. 23 of 2006 -4- examined to prove the account details contained in the Ext.P7 ledger extract. He also proved Ext.P2 memo issued from the bank. The complainant's evidence is that the accused stopped payment from the bank for the reason that he had no amount in his account to honour the cheque. This is proved by the evidence of PW2 and also the Ext.P7 ledger extract. The ledger extract shows that as on the date on which the Ext.P1 cheque came up for collection, the accused has no sufficient money in his account. He has no case that he had funds in his account, or that the cheque was bounced on some other ground. Ext.P3 statutory notice was sent by the complainant in time, and the complaint was also filed by him well within time. I find that the complainant had complied with the statutory requirements for initiating the prosecution.
6. The defence case is that the transaction was in fact between the accused and one Anil Kumar, and that at the time of the said borrowal, the accused had handed over Crl.R.P. No. 23 of 2006 -5- a blank cheque. He would admit that Ext.P1 is the said cheque. His further case is that he has discharged the debt, but the cheque was not returned by Anil Kumar. The deceased complainant somehow procured the said cheque, and filed a false complaint against him. The accused examined himself as DW1, but his evidence is not satisfactory to prove or probabilize the defence case. He did not examine the said Anil Kumar to prove the transaction alleged by him. I find that the defence case stands not proved or probabilized by any material. The complainant has well proved the offence punishable under Section 138 of the NI Act. I find that the accused was rightly convicted by the courts below.
7. Now the question of sentence. Pending the revision, the original complainant died, and his legal representatives were impleaded as additional respondents 3 to 6. Though the cheque amount is Rs.40,000/-, the trial court directed payment of Rs.43,000/- as compensation. Crl.R.P. No. 23 of 2006 -6- Though the trial court imposed a jail sentence of imprisonment for three months, the appellate court reduced it to one month. The alleged transaction of borrowal was years back, in 1999. On a consideration of the loss sustained by the complainant, including the expenses incurred by him to prosecute the accused, I feel it appropriate to enhance the amount of compensation reasonably, and reduce the term of jail sentence to the minimum possible under the law. The concern of the additional respondents now must be to get the amount somehow, and not to send the accused to jail.
In the result, the conviction against the revision petitioner under Section 138 of the NI Act in S.T. No. 301 of 2000 of the court below 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 Crl.R.P. No. 23 of 2006 -7- court.
(b) The amount of compensation ordered by the court below under Section 357(3) Cr.P.C. will stand enhanced to Rs.50,000/-, maintaining the default sentence already imposed by the trial court.
The revision petitioner will surrender before the trial court within three months 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 realize the amount of compensation, or enforce the default sentence.
Sd/-
P.UBAID JUDGE ma/ds 12.07.2018 //True Copy// P.A. To Judge