K.N.Basheer Vs. D.Mamooty - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE9H DAY OF JUNE201419TH JYAISHTA, 1936 Crl.Rev.Pet.No. 1056 of 2014 () -------------------------------- AGAINST THE /JUDGMENT

IN Crl.A2772013 of SESSIONS COURT,PATHANAMTHITTA AGAINST THE JUDGMENT

IN ST13492010 of J.M.F.C.-II,PATHANAMTHITTA REVISION PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------- K.N.BASHEER AGED39YEARS S/O.NAGOORMEERA, KODUNKAMANNIL VEEDU, VETTIPURAM THONNIYAMALA P.O., PATHANAMTHITTA. BY ADVS.SRI.V.SETHUNATH SRI.S.JUSTUS RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------------------------------------------ 1. D.MAMOOTY, AGED54YEARS KOCHUPARAMBIL PUTHEN VEEDU, KULASEKHARAPATHY, KUMBAZHA PATHANAMTHITTA, PIN:

689. 653.

2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN:

682. 031. R2 BY PUBLIC PROSECUTOR SRI.GIREESH.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON0906-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.UBAID, J.

~~~~~~~~~~ Crl.R.P. No.1056 of 2014 ~~~~~~~~~~~ Dated this the 9th June, 2014 ORDER

The revision petitioner challenges the legality and propriety of the conviction and sentence against him under Section 138 of the Negotiable Instruments Act. A cheque issued by him in favour of the 1st respondent herein for 3 lakhs in discharge of a debt was dishonoured due to insufficiency of funds, and in spite of statutory notice, he failed to make payment of the cheque amount.

2. He pleaded not guilty during trial, and claimed to be tried. The complainant (the 1st respondent herein) examined himself as PW1 during trial, and also marked Exts.P1 to P6. Though the revision petitioner made serious contest, he did not adduce any evidence in defence to prove or probabilise his case that he is not liable to pay the amount covered by the cheque, or that it is not supported by any consideration.

3. On an appreciation of the evidence given by the complainant, the trial court found the revision petitioner Crl.R.P. No.1056 of 2014 2 guilty under Section 138 of the Negotiable Instruments Act. On conviction thereunder, he was sentenced to undergo simple imprisonment for three months, and was also directed to pay a compensation of 3 lakhs to the complainant under Section 357 (3) of Cr.P.C.

4. Aggrieved by the conviction and sentence, the revision petitioner approached the Court of Session, Pathanamthitta with Crl.A No.277 of 2013. In appeal, the learned Sessions Judge confirmed the conviction but, modified the sentence by reducing the imprisonment for three months to imprisonment till rising of the court. However, the direction to pay compensation was maintained.

5. On hearing the learned counsel for the revision petitioner, and on a perusal of the case records, I find no reason or ground to admit this revision to files. The complainant has given definite and consistent evidence proving the transaction in which the revision petitioner incurred debt, and also proving the execution of Ext.P1 cheque. The complainant has also given evidence that the cheque was dishonoured due to insufficiency of funds. Crl.R.P. No.1056 of 2014 3 Ext.P2 dishonour memo and Exts.P3 intimation will show that the cheque was bounced due to insufficiency of funds. The revision petitioner has no case that he had sufficient funds in his account to honour the cheque, or that the cheque was bounced on some other ground. Ext.P4 statutory notice was sent by the complainant in time, but, it was returned unclaimed. Anyway, notice was caused by him in time in the proper and regular address of the revision petitioner. He has no case that he had made payment of the cheque amount as demanded in the statutory notice. The evidence given by the complainant, on facts, proving the offence stands not discredited. I find that the complainant has well proved the offence punishable under Section 138 of the Negotiable Instruments Act with all the necessary elements and ingredients, including compliance of the statutory requirements for initiating prosecution. I find no ground for interference in the conviction or in the sentence on the ground of any illegality or irregularity or impropriety.

6. The sentence imposed in appeal is the minimum possible under the law. Direction to pay the cheque amount as compensation was made by the courts below with the Crl.R.P. No.1056 of 2014 4 object of doing substantial justice to the complainant, who has not so far received anything from the revision petitioner in discharge of the debt due. In the above circumstances, this revision petition is liable to be dismissed in limine.

7. The learned counsel for the revision petitioner made a request to grant some reasonable time to make payment of the compensation in the trial court. Of course, considering the facts and circumstances, including the amount involved, I feel that some reasonable time can be granted to the revision petitioner, and subject to this, the revision can be dismissed in limine. In the result, this revision petition is dismissed in limine, without being admitted to files. However, the revision petitioner is granted time for eight months', as requested by him, to surrender before the trial court to serve out the sentence and make payment of the compensation voluntarily, on failure of which, the trial court shall take steps to enforce the sentence, and recover the amount of compensation, or enforce the default sentence. Sd/- P.UBAID JUDGE ma /True copy/ P.S to Judge