V.K.Mohanan v. P.K.Sathinathan

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 18TH DAY OF NOVEMBER 2015/27TH KARTHIKA, 1937 Crl.Rev.Pet.No. 2837 of 2009 ( ) --------------------------------- Crl.A 583/2008 of ADDL. SESSIONS COURT (ADHOC-III), NORTH PARAVUR ST 5206/2004 of J.M.F.C. - II, NORTH PARAVUR REVISION PETITIONER/ACCUSED/APPELLANT:

-------------------------------------------------------------- V.K.MOHANAN, B.NO.16/12284, DGMS OFFICE, FACT, UDYOGAMANDAL (PO).

BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENTS/COMPLAINANT:

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1. P.K.SATHINATHAN, PAYYAPPILLY PARAMBIL, NORTH PARAVUR.

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

R2 BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-11-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

B.SUDHEENDRA KUMAR, J.

- - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November 2015

O R D E R

The accused in S.T. No.5206 of 2004 on the files of the Court of the Judicial Magistrate of First Class-II, North Paravur, has filed this revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 138 of the Negotiable Instruments Act (for short 'N.I. Act.')

2. The prosecution allegation is that the revision petitioner executed Ext.P1 cheque in favour of the complainant towards the discharge of the liability to the complainant. The complainant presented the said cheque

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for encashment. However, the same was dishonoured due to insufficiency of funds in the account of the revision petitioner. Statutory notice was issued to the revision petitioner, which was received by the revision petitioner. However, the revision petitioner did not make payment of the cheque amount within the statutory period or thereafter.

3. Before the trial court, PW1 was examined and Exts.P1 to P6 were marked for the complainant. No evidence was adduced on the side of the revision petitioner.

4. The courts below, relying on the documentary as well as the oral evidence adduced by the complainant, concurrently found that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the

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N.I. Act. Since there is concurrent finding on facts, this Court will not be justified in interfering with the same unless the finding is perverse or incorrect. No circumstance has been brought to my notice to indicate that the appreciation of evidence by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the offence under Section 138 of the N.I. Act, does not warrant any interference by this Court. 5.

The cheque is for Rs. 75,000/-. Considering the facts and circumstances of the case, including the amount covered by Ext.P1 cheque, I am of the view that the sentence awarded by the courts below can be modified and reduced to imprisonment till the rising of the court and a

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fine of Rs.75,000/- to secure the ends of justice. Accordingly, I order so.

In the result, this revision petition stands allowed in part, (i) confirming the verdict of guilty and conviction passed by the courts below under Section 138 of the N.I. Act, (ii) the sentence awarded by the courts below under Section 138 of the N.I.

Act stands modified and reduced to imprisonment till the rising of the court and a fine of Rs.75,000/-(Rupees seventy five thousand only) (iii) in default of payment of fine, the revision petitioner shall undergo simple imprisonment for three months.

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(iv) in the event of realisation of the fine amount, the entire amount shall be given to the complainant as compensation under Section 357(1) (b) Cr.P.C.

The revision petitioner is granted six months to pay the fine, as requested by the learned counsel for the revision petitioner.

Sd/- B.SUDHEENDRA KUMAR, JUDGE dl/19.11.2015 // True Copy // PA to Judge