Subash Chandra Bose v. State Of Kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 8TH DAY OF OCTOBER 2015/16TH ASWINA, 1937 Crl.Rev.Pet.No. 1158 of 2015 () -------------------------------- CRA 248/2012 of II ADDL.S.C-II,THIRUVANANTHAPURAM ST 2125/2007 of J.M.F.C.-II, VARKALA REVISION PETITIONER/APPELLANT/ACCUSED:
---------------------------------------------------------------- SUBASH CHANDRA BOSE S/O.RAGHAVAN, VAYALIL VEEDU, THODUVA KOVALATHIL, VARKALA P.O., VARKALA THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.M.DINESH RESPONDENTS/RESPONDENTS/STAT & COMPLAINANT:
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1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031.
2. MANIYAMMA, D/O.MADHAVAN, M.S.LAND, NELLICODU VADASSERIKONAM P.O., VARKALA, THIRUVANANTHAPURAM R1 BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-10-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
- - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.1158 of 2015 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of October 2015
O R D E R
The revision petitioner is the accused in S.T.No.2125 of 2007 on the files of the Court of the Judicial Magistrate of First Class-II, Varkala.
2. The trial court convicted the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short "the N.I.Act") and sentenced him thereunder to imprisonment till the rising of the court and to pay a compensation of Rs.1,42,700/- to the complainant under Sec.357 (3) Cr.P.C., with a default clause for simple
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imprisonment for three months. The appeal filed against the said conviction and sentence was dismissed by the appellate court. Aggrieved by the said conviction and sentence, this Revision Petition has been filed.
3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4.
The prosecution allegation is that the revision petitioner borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability, the revision petitioner issued Ext.P1 cheque in favour of the complainant. The complainant presented the said cheque 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
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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.
5. Before the court below, PW1 to PW3 were examined and Exts.P1 to P8 were marked for the complainant. DW1 and DW2 were examined for the revision petitioner.
6. The courts below, relying on the documentary as well as oral evidence adduced by the parties, concurrently found that the revision petitioner had executed Ext.P1 cheque as contemplated under Section 138 of the N.I. Act. The defence set up by the revision petitioner through DW1 and DW2 was repelled by the courts below. Since there is
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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. The courts below concurrently found the revision petitioner guilty under Section 138 of the N.I.Act and convicted him thereunder. Having gone through the relevant inputs, I do not find any reason to interfere with the concurrent finding of the courts below that the revision petitioner committed the offence under Section 138 of the N.I.Act. 7.
The cheque amount is Rs.1,00,000/-.
Considering the facts and circumstances of the case, including the amount covered by Ext. P1 cheque, I am of
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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 fine of Rs.1,00,000/- 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.1,00,000 (Rupees one lakh only).
(iii) in default of payment of fine, the revision petitioner shall undergo simple imprisonment for two months.
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(iv) in the event of realisation of the fine, 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 time to pay the fine, as requested by the learned counsel for the revision petitioner.
sd/ B.SUDHEENDRA KUMAR, JUDGE dl // True Copy // PA to Judge