P.S. Binoy Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1141432
CourtKerala High Court
Decided OnMay-22-2014
JudgeHONOURABLE MR. JUSTICE P.UBAID
AppellantP.S. Binoy
RespondentState of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice p.ubaid thursday, the22d day of may20141st jyaishta, 1936 crl.rev.pet.no. 860 of 2014 () ------------------------------- against the judgment in crl.a762011 of addl. sessions court (spl.) kottayam against the judgment in st462010 of j.m.f.c.- v, kottayam revn.petitioner/1st appellant/accused : ----------------------------------------------------- p.s. binoy s/o. scaria chummar, panakunnel house, amayannoor p.o. kottayam. by advs.sri.v.b.premachandran sri.k.n.govindankutty menon sri.s.madhavan nair respondent(s)/respondents/complainants & state : ------------------------------------------------------------------- 1. state of kerala represented by public prosecutor high court of kerala, ernakulam.2. o.v.varghese s/o. varghese, udumbanattu, amayanoor p.o. kottayam. (complainant). r1 by public prosecutor smt.bindu gopinath r2 by adv. sri.liji.j.vadakedom this criminal revision petition having come up for admission on2205-2014, the court on the same day passed the following: p.ubaid, j.~~~~~~~~~~ crl.r.p no.860 of 2014 ~~~~~~~~~~~ dated this the 22nd may, 2014 order on indictment under section 138 of the negotiable instruments act, the revision petitioner herein faced trial before the judicial first class magistrate-v, kottayam in s.t no.46 of 2010. prosecution was initiated by the 2nd respondent herein in the in the trial court. his case is that a cheque issued by the revision petitioner for 5,45,000/- in discharge of the amount borrowed by him for some purpose was dishonoured due to insufficiency of funds, and in spite of statutory notice, the revision petitioner did not make payment of the cheque amount.2. the revision petitioner pleaded not guilty in the trial court and claimed to be tried. accordingly, the prosecution proceeded for trial. the complainant examined himself as pw1, and also marked exts.p1 to p9 including the cheque in question. when examined under section 313, cr.p.c, the revision petitioner denied the incriminating circumstances and advanced a defence that crl.r.p no.860 of 2014 2 the cheque in question was, in fact, handed over by him as security in another loan transaction involving only an amount of 3 lakhs. in spite of opportunity granted by the trial court, the revision petitioner did not adduce any evidence in defence. on an appreciation of the evidence adduced by the complainant, the learned magistrate found him guilty under section 138 of the negotiable instruments act. on conviction thereunder, he was sentenced to undergo simple imprisonment for two months and also to pay a fine of 5,45,000/-.3. aggrieved by the conviction and sentence, the revision petitioner preferred appeal before the court of session, kottayam as crl.a no.76 of 2011. the learned additional session judge (spl), kottayam dismissed the appeal by judgment dated 6.9.2013. now the accused challenges the legality and propriety of the conviction and sentence before this court in revision.4. on hearing both sides and on a perusal of the case records, i find no reason or scope to interfere in the conviction. the complainant has given definite and consistent evidence regarding the alleged transaction of borrowal and also regarding the execution of ext.p2 cheque crl.r.p no.860 of 2014 3 in discharge of the said liability. this evidence given by the complainant stands not discredited, and the presumption thus available to him under section 139 of the n.i.act stands not in any manner rebutted. the defence pleaded by the revision petitioner is that he had borrowed 3 lakhs from some other person and ext.p2 cheque was handed over by him as security in the said transaction of borrowal. there is no explanation why the said person could not have filed a complaint by using the said cheque. anyway, the defence case stands not in any manner probabilised or proved that such a cheque was handed over to somebody else. this is a case where the cheque admittedly bearing the signature of the revision petitioner was handed over by him. in such a factual situation, no further evidence is required to prove the execution of the cheque. exts.p3 and p4 documents will show that the cheque in question was dishonoured due to insufficiency of funds. the revision petitioner does not have a case that he had sufficient funds in his account to honour the cheque or that it was bounced on some other ground. i find that ext.p2 cheque was in fact bounced due to insufficiency of funds in the account of the revision petitioner. the alleged transaction of borrowal and also crl.r.p no.860 of 2014 4 issuance of the cheque in discharge of the said liability stands well proved by the evidence of the complainant. ext.p5 statutory notice was sent by the complainant in time and the complaint was filed in time. the revision petitioner has no explanation why he did not send reply to the statutory notice. thus, i find in revision that the case on facts stands well proved by the complainant, and that conviction under section 138 of the negotiable instruments act was rightly made by the trial court and the appellate court.5. the learned counsel for the revision petitioner made a request to reduce the jail sentence to the minimum possible under the law and to convert the fine as compensation, so that the dispute could be settled between the parties and payment also could be directly made to the complainant. i feel that the concern of the complainant/respondent is only to get the money due and not to send the accused to jail. if the fine is converted as compensation, the parties can very well settle the liability conveniently and close the account in instalments or otherwise. so, i feel that such a course is quite just and reasonable as requested by the revision petitioner. no crl.r.p no.860 of 2014 5 reduction in the amount of cheque can be made when the complainant has admittedly not pursued any civil action for realisation of the cheque amount. with this modification in sentence, the revision can be allowed in part, however, confirming the conviction under section 138 of the negotiable instruments act.6. the learned counsel for the revision petitioner made a further request for some reasonable time to make payment of the compensation. his request is for eight months. when the amount involved is 5,45,000/- i feel that such a request also can be granted. in the result, this revision petition is allowed in part, confirming the conviction under section 138 of the negotiable instruments act, but modifying the sentence. the sentence imposed by the courts below is modified to the effect that the jail sentence will stand reduced to imprisonment till rising of court, and the fine sentence will stand altered as compensation under section 357 (3) of cr.p.c. however, the default sentence imposed by the court below will stand raised to simple imprisonment for two months. thus, with the above modification in sentence, this revision is allowed in part, however, granting time for eight crl.r.p no.860 of 2014 6 months to the revision petitioner from today to make payment of the compensation voluntarily and to surrender before the court below to serve out the sentence. in case of failure to surrender before the court below and make payment of the compensation within time, the trial court will enforce the sentence and recover the amount of compensation or enforce the default sentence as modified by this court in revision. sd/- p.ubaid judge ma /true copy/ p.s to judge crl.r.p no.860 of 2014 7
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID THURSDAY, THE22D DAY OF MAY20141ST JYAISHTA, 1936 Crl.Rev.Pet.No. 860 of 2014 () ------------------------------- AGAINST THE JUDGMENT

IN CRL.A762011 of ADDL. SESSIONS COURT (SPL.) KOTTAYAM AGAINST THE JUDGMENT

IN ST462010 of J.M.F.C.- V, KOTTAYAM REVN.PETITIONER/1ST APPELLANT/ACCUSED : ----------------------------------------------------- P.S. BINOY S/O. SCARIA CHUMMAR, PANAKUNNEL HOUSE, AMAYANNOOR P.O. KOTTAYAM. BY ADVS.SRI.V.B.PREMACHANDRAN SRI.K.N.GOVINDANKUTTY MENON SRI.S.MADHAVAN NAIR RESPONDENT(S)/RESPONDENTS/COMPLAINANTS & STATE : ------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

2. O.V.VARGHESE S/O. VARGHESE, UDUMBANATTU, AMAYANOOR P.O. KOTTAYAM. (COMPLAINANT). R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH R2 BY ADV. SRI.LIJI.J.VADAKEDOM THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON2205-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.UBAID, J.

~~~~~~~~~~ Crl.R.P No.860 of 2014 ~~~~~~~~~~~ Dated this the 22nd May, 2014 ORDER

On indictment under Section 138 of the Negotiable Instruments Act, the revision petitioner herein faced trial before the Judicial First Class Magistrate-V, Kottayam in S.T No.46 of 2010. Prosecution was initiated by the 2nd respondent herein in the in the trial court. His case is that a cheque issued by the revision petitioner for 5,45,000/- in discharge of the amount borrowed by him for some purpose was dishonoured due to insufficiency of funds, and in spite of statutory notice, the revision petitioner did not make payment of the cheque amount.

2. The revision petitioner pleaded not guilty in the trial court and claimed to be tried. Accordingly, the prosecution proceeded for trial. The complainant examined himself as Pw1, and also marked Exts.P1 to P9 including the cheque in question. When examined under Section 313, Cr.P.C, the revision petitioner denied the incriminating circumstances and advanced a defence that Crl.R.P No.860 of 2014 2 the cheque in question was, in fact, handed over by him as security in another loan transaction involving only an amount of 3 lakhs. In spite of opportunity granted by the trial court, the revision petitioner did not adduce any evidence in defence. On an appreciation of the evidence adduced by the complainant, the learned Magistrate found him guilty under Section 138 of the Negotiable Instruments Act. On conviction thereunder, he was sentenced to undergo simple imprisonment for two months and also to pay a fine of 5,45,000/-.

3. Aggrieved by the conviction and sentence, the revision petitioner preferred appeal before the Court of Session, Kottayam as Crl.A No.76 of 2011. The learned Additional Session Judge (Spl), Kottayam dismissed the Appeal by judgment dated 6.9.2013. Now the accused challenges the legality and propriety of the conviction and sentence before this Court in revision.

4. On hearing both sides and on a perusal of the case records, I find no reason or scope to interfere in the conviction. The complainant has given definite and consistent evidence regarding the alleged transaction of borrowal and also regarding the execution of Ext.P2 cheque Crl.R.P No.860 of 2014 3 in discharge of the said liability. This evidence given by the complainant stands not discredited, and the presumption thus available to him under Section 139 of the N.I.Act stands not in any manner rebutted. The defence pleaded by the revision petitioner is that he had borrowed 3 lakhs from some other person and Ext.P2 cheque was handed over by him as security in the said transaction of borrowal. There is no explanation why the said person could not have filed a complaint by using the said cheque. Anyway, the defence case stands not in any manner probabilised or proved that such a cheque was handed over to somebody else. This is a case where the cheque admittedly bearing the signature of the revision petitioner was handed over by him. In such a factual situation, no further evidence is required to prove the execution of the cheque. Exts.P3 and P4 documents will show that the cheque in question was dishonoured due to insufficiency of funds. The revision petitioner does not have a case that he had sufficient funds in his account to honour the cheque or that it was bounced on some other ground. I find that Ext.P2 cheque was in fact bounced due to insufficiency of funds in the account of the revision petitioner. The alleged transaction of borrowal and also Crl.R.P No.860 of 2014 4 issuance of the cheque in discharge of the said liability stands well proved by the evidence of the complainant. Ext.P5 statutory notice was sent by the complainant in time and the complaint was filed in time. The revision petitioner has no explanation why he did not send reply to the statutory notice. Thus, I find in revision that the case on facts stands well proved by the complainant, and that conviction under Section 138 of the Negotiable Instruments Act was rightly made by the trial court and the appellate court.

5. The learned counsel for the revision petitioner made a request to reduce the jail sentence to the minimum possible under the law and to convert the fine as compensation, so that the dispute could be settled between the parties and payment also could be directly made to the complainant. I feel that the concern of the complainant/respondent is only to get the money due and not to send the accused to jail. If the fine is converted as compensation, the parties can very well settle the liability conveniently and close the account in instalments or otherwise. So, I feel that such a course is quite just and reasonable as requested by the revision petitioner. No Crl.R.P No.860 of 2014 5 reduction in the amount of cheque can be made when the complainant has admittedly not pursued any civil action for realisation of the cheque amount. With this modification in sentence, the revision can be allowed in part, however, confirming the conviction under Section 138 of the Negotiable Instruments Act.

6. The learned counsel for the revision petitioner made a further request for some reasonable time to make payment of the compensation. His request is for eight months. When the amount involved is 5,45,000/- I feel that such a request also can be granted. In the result, this revision petition is allowed in part, confirming the conviction under Section 138 of the Negotiable Instruments Act, but modifying the sentence. The sentence imposed by the courts below is modified to the effect that the jail sentence will stand reduced to imprisonment till rising of court, and the fine sentence will stand altered as compensation under Section 357 (3) of Cr.P.C. However, the default sentence imposed by the court below will stand raised to simple imprisonment for two months. Thus, with the above modification in sentence, this revision is allowed in part, however, granting time for eight Crl.R.P No.860 of 2014 6 months to the revision petitioner from today to make payment of the compensation voluntarily and to surrender before the court below to serve out the sentence. In case of failure to surrender before the court below and make payment of the compensation within time, the trial court will enforce the sentence and recover the amount of compensation or enforce the default sentence as modified by this Court in revision. Sd/- P.UBAID JUDGE ma /True copy/ P.S to Judge Crl.R.P No.860 of 2014 7