Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE30H DAY OF MAY20149TH JYAISHTA, 1936 Crl.Rev.Pet.No. 1528 of 2012 ----------------------------- AGAINST THE JUDGMENT
IN CRA5092010 of III ADDL.SESSIONS COURT, KOLLAM DATED1406-2011 AGAINST ST1482009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- III, KOLLAM REVISION PETITIONER: -------------------- SABEERJAN.K.C, AGED50YEARS, S/O.YOUSF JAL, SHEEJALAYAM, KANNIMEL, MARUTHADI P.O, KOLLAM DISTRICT. BY ADV. SRI.P.V.DILEEP RESPONDENTS: ----------- 1. THE KOLLAM CO-OPERATIVE AGRICULATURE AND RURAL DEVELOPMENT BANK LTD. Q167 KOLLAM REPRESENTED BY ITS SECRETARY, RADHAKRISHNA PILLAI.P, S/O.PADMANABHA PILLAI, MADHAVA MANDIRAM, ASHTAMUDI, KOLLAM - 691 001 2. STATE OF KEARLA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEARLA, ERNAKULAM. R1 BY ADV. SRI.V.G.ARUN R1 BY ADV. SRI.T.R.HARIKUMAR BY PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON3005-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ab P.UBAID, J.
--------------------------------------- Crl.R.P No.1528 of 2012 --------------------------------------- Dated this the 30th day of May, 2014 ORDER
Conviction and sentence under Section 138 of the Negotiable Instruments Act are under challenge in this revision brought by the accused in S.T No.148/2009 before the Judicial First Class Magistrate Court III, Kollam. Complaint in the said case was brought in the trial court by the 1st respondent herein, on the allegation that a cheque for 92,500/- issued by the revision petitioner in discharge of a debt incurred by him, was dishonoured due to insufficiency of funds, and inspite of statutory notice, the accused failed to make payment of the cheque amount.
2. The revision petitioner pleaded not guilty during trial. The complainant examined PW1, and also marked Exts.P1 to P9. The revision petitioner did not adduce any evidence in defence though he denied the incriminating circumstances when examined under Section 313 Cr.P.C.
3. On an appreciation of the evidence the trial court found the revision petitioner guilty under Section 138 of Crl.R.P No.1528 of 2012 2 N.I Act. On conviction thereunder he was sentenced to undergo simple imprisonment for six months, and was also directed to pay a compensation of 92,500/- to the complainant under Section 357(3) Cr.P.C.
4. Aggrieved by the conviction and sentence the accused approached the Court of Session, Kollam with Crl.A No.509/2010. In appeal the learned III Additional Sessions Judge, Kollam confirmed the conviction, but modified the sentence. Accordingly, the appeal was allowed in part, reducing the term of sentence to imprisonment till rising of the Court. 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 the learned counsel on both sides, and on a perusal of the case records, I find no reason or ground to admit the revision to files. PW1 examined on the side of the complainant has given satisfactory and convincing evidence proving the alleged transaction, in which debt was incurred by the revision petitioner, and also proving execution of Ext.P2 cheque. The revision petitioner has no explanation how the cheque bearing his signature came in the hands of the complainant, if not handed over in discharge of any debt or Crl.R.P No.1528 of 2012 3 liability. The complainant is Kollam Co-operative Agriculture and Rural Development Bank, and it is quite improbable that such an institution will bring a false claim. Any way, the evidence given by PW1 stands not discredited, and the presumption available to the complainant under Section 139 of N.I Act stands not rebutted in any manner. Exts.P3 and P4 documents will show that the cheque in question was bounced due to insufficiency of funds. The revision petitioner has no case otherwise that it was bounced on some other ground, or that he had sufficient funds in his account to honour the cheque. Ext.P5 statutory notice was sent by the complainant in time, and the complaint was filed well within time. The revision petitioner has no explanation why he did not send reply to the statutory notice, and he has no case that he had paid the cheque amount as demanded in the notice. Thus I find that the complainant has well proved his case, and that the revision petitioner was rightly convicted under Section 138 of N.I Act. Compliance of the statutory requirements for prosecution also stands proved. I find no illegality or illegality in the conviction made by the court below. The sentence imposed in this case, as modified in appeal, is imprisonment till rising of the court. Being the minimum possible under the law, there is no scope for interference in the Crl.R.P No.1528 of 2012 4 sentence. Direction to pay the cheque amount as compensation was made by the courts below with a view to do substantial justice to the complainant bank. Admittedly, the bank has not so far initiated any civil action. The said direction also does not require any interference.
7. The learned counsel for the revision petitioner made a request to grant some reasonable time to the revision petitioner to make payment of the compensation in the trial court. In the particular facts and circumstances, I feel that some reasonable time can be granted to the revision petitioner. Subject to this, the revision petition can be dismissed in limine. In the result, this Criminal Revision Petition is dismissed in limine, without being admitted to files. However, the revision petitioner is granted three months time from this date to surrender before the trial court, to serve out the sentence, and to make payment of the compensation voluntarily, on failure of which steps shall be taken by the trial court to enforce the sentence and to recover the amount of compensation, or impose the default sentence. P.UBAID JUDGE ab