Paulose v. Sasidharan And Another
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. 2320 of 2011 ( ) --------------------------------- CRA 257/2008 of I ADDL.SESSIONS COURT, KOLLAM CC 319/2005 of J.M.F.C.-II(FOREST OFFENCES),PUNALUR REVISION PETITIONER/ACCUSED:
--------------------------------------------------------- PAULOSE,AGED 62 YEARS,S/O.PAILY, ENGINEERING CONTRACTOR, REVIEW BUILDING KURISSADI JUNCTION, NALANCHIRA, TRIVANDRUM PIN 695 015.
BY ADV. SRI.THOMAS M.JACOB RESPONDENTS/COMPLAINANT & STATE:
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1. SASIDHARAN, AGE NOT KNOWN, S/O.PARAMU, PARAMKIMAMVILA VEEDU ALANCHERRY, YEROOR, KOLLAM 691 312.
2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA R1 BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL R2 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.2320 of 2011 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of October 2015
O R D E R
The revision petitioner is the accused in C.C. No.319 o 2005 on the files of the Court of the Judicial Magistrate of First Class-II (Forest Offences), Punalur.
2. The trial court convicted the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I.Act" for short) and sentenced him thereunder to simple imprisonment for six months and a compensation of Rs.9,50,000/- to the complainant under Sec.357 (3)
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Cr.P.C. 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.10,00,000/- 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 revision petitioner, which was received by the revision
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petitioner. However, the revision petitioner did not make payment of the cheque amount within the statutory period or thereafter.
5. Before the trial court, PW1 was examined and Exts.P1 to P5 were marked for the complainant. No evidence was adduced on the side of the defence.
6. The courts below, after evaluating the oral and documentary evidence adduced by the complainant, concurrently found that the revision petitioner had executed Ext.P1 cheque as contemplated under Section 138 of the 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
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perverse or incorrect. The courts below concurrently found the revision petitioner guilty under Section 138 of the N.I.Act and convicted him thereunder. In the said circumstances, 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 is for Rs.10,00,000/- The revision petitioner paid an amount of Rs.50,000/- during the pendency of the case. 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
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by the courts below can be modified and reduced to imprisonment till the rising of the court and a fine of Rs.9,50,000/- 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.9,50,000/- (Rs.
Nine lakh fifty thousand only).
(iv) in the event of realisation of the fine amount, the entire amount shall be
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given to the complainant as compensation under Section 357(1) (b) Cr.P.C.
The revision petitioner is granted six months to make payment of the fine ordered by this Court, as requested by the learned counsel.
Needless to state that the amount already deposited by the revision petitioner shall be treated as part payment of the fine ordered by this Court in this order. The first respondent shall be at liberty to withdraw the amount, if any, deposited by the revision petitioner before the Court in connection with this case. Sd/ B.SUDHEENDRA KUMAR, JUDGE dl/ The following sentence viz., "in default of payment of fine, the revision petitioner shall undergo simple imprisonment for three months" is added as clause three (iii) at page 5 of the final order dated 8.10.2015 in Crl.R.P. 2320/2011 as per order dated 30.10.2015 in Crl.M.A.6117/2015 in Crl.R.P.2320/2011.
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Registrar (Judicial) // True Copy // PA to Judge