Elcy George v. Elsy Joseph and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939** **Crl.Rev.Pet.No. 1540 of 2002 ( )** **--------------------------------CRA.54/2000 of SESSIONS COURT,THODUPUZHA ST.1025/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA** **REVISION PETITIONER(S)/ACCUSED IN TRIAL COURT & APPELLANT IN THE LOWER APPELLATE COURT:** **---------------------------------------------** **ELCY GEORGE, ANAKKALLIL STORE, KATTAPPANA VILLAGE, KATTAPPANA.** **BY ADV. SRI.GEORGEKUTTY MATHEW** ## **RESPONDENT(S)/COMPLAINANTS:** **--------------------------** **1. ELSY JOSEPH, NAMBYAPARAMBIL HOUSE, KALOOR P.O., THODUPUZHA.** **2. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.1540 Of 2002 --------------------------------- Dated this the 27th day of September, 2017. ## O R D E R The petitioner has been indicted for the offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No.1025/1997 on the file of the Judicial First Class Magistrate Court, Kattappana, instituted on the basis of a complaint filed by the 1[st] respondent herein. Ext.P-1 dishonoured cheque dated 24.1.1997 is for Rs.12,200/-. The trial court as per the impugned judgment rendered on 8.3.2000 had convicted the petitioner for the above said offence and sentenced her to undergo simple imprisonment for a period of 6 months and also ordered to pay a fine of Rs.15,000/- and in default thereof to undergo simple imprisonment for a period of 45 days. Out of the said fine amount, Rs.12,200/- has been ordered to be disbursed as compensation to the complainant in terms of Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Criminal Appeal No.54/2000 before the Sessions Court, Thodupuzha. The appellate Sessions Court concerned, as per the impugned judgment rendered on 17.9.2002 has confirmed the conviction but has reduced the substantive sentence of simple ::2:: Crl.R.P.No.1540 Of 2002 imprisonment for six months to simple imprisonment for 2 months and also reduced the fine amount of Rs.15,000/- to Rs.5,000/- and in default thereof the accused was sentenced to undergo simple imprisonment for 15 days. It is these judgments of the courts below that are under challenge in the Revision Petition. 2. The revision petition was filed as early as on 25.11.2002. This Court as per order dated 26.11.2002 had ordered notice to the respondents. This Court had also passed interim order dated 26.11.2002 on Crl.M.A.No.8500/2002 in Crl.R.P.No.1540/2002 ordering that the sentence imposed on the petitioner shall be suspended for 4 months and the revision petitioner shall be released on bail on her executing a bond for Rs.10,000/- (Rupees ten thousand only) with two solvent sureties each for the like amount to the satisfaction of the trial court and on condition that the revision petitioner shall deposit an amount of Rs.5,000/- before the trial court within one month. The trial court has now intimated the Registry as per report dated 26.9.2017 that the petitioner had appeared before that court on 30.11.2002 and had executed bond for Rs,10,000/- with two solvent sureties and also deposited an amount of Rs.5,000/-, etc. ::3:: Crl.R.P.No.1540 Of 2002 3. Notice to R-2 State was taken by PP. However, service of notice on R-1 has not been completed. This Court as per order dated 27.5.2015 had given the revision petitioner 2 weeks' time to cure the defect of non service of notice and on 17.7.2015, this Court had granted another 5 days' time as the petitioner has not taken any steps and specifically it is ordered therein that if the defect is not cured within the stipulated the revision petition will stand dismissed for non prosecution. The Registry has noted on 25.10.2016 that fresh steps have not been taken by the petitioner and therefore, notice could not be send to R-1. Even on 26.9.2017, the Registry has noted that fresh process has not been received so far and hence notice could not be send and thus it is seen that the petitioner has not even bothered to take necessary steps for serving out notice to R-1. 4. Heard Sri.George Kutty Mathew, learned counsel appearing for the revision petitioner (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 5. The brief of the allegations in the complaint is to the effect that towards discharge of liability of an amount of Rs.12,200/- owed by the accused to the complainant, the revision petitioner (accused) had issued Ext.P-1 cheque dated 24.1.1997 drawn from her account and ::4:: Crl.R.P.No.1540 Of 2002 payable in favour of the complainant and the cheque when presented resulted in dishonour on the ground 'exceeds arrangement' as per Ext.P-2 memo, consequent to which the complainant had issued Ext.P-3 statutory demand notice under Sec.138 proviso (b) of the N.I. Act calling upon the accused to pay the amount within 15 days from the date of receipt of the said notice and though the said notice sent by registered post has been duly served on R-1 as per Ext.P-4, there was no response from the petitioner-accused, consequent to which the complainant has instituted the present complaint, which led to the conduct of the trial. During the trial, the complainant was examined as PW-1 and marked Exts.P-1 to P-6 documents. Defence has not adduced any oral or documentary evidence. 6. The courts below after meticulously evaluating the material evidence adduced have concurrently found that the revision petitioner has duly executed Ext.P-1 cheque as contemplated in Sec.138 of the N.I. Act. Since the contentions of the petitioner have been repelled by both the courts below, this Court will not be justified in interfering with such considered findings of fact unless such considered findings of facts are vitiated by perversity, illegality, etc. No circumstance could be brought to the notice of this Court to show that those findings are in any manner ::5:: Crl.R.P.No.1540 Of 2002 illegal, incorrect or perverse. So, this Court is not in a position to interfere with the findings of facts regarding the conviction of the petitioner. 7. As regards the question of sentence, it is seen that, as per the modified order of the appellate court, the substantive sentence has been reduced to simple imprisonment for 2 months and the fine amount ordered to be paid is Rs.5,000/- with default sentence clause of 15 days' simple imprisonment. Taking into account the legal principles laid down by the Apex Court in Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SC 1907 and Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566, etc., the substantive sentence could be reduced to simple imprisonment till the rising of the court. However, this Court should ensure that adequate justice is rendered to the complainant as Ext.P-1 cheque for Rs.12,200/- has been issued as early as in 24.1.1997. More than 20 ½ long years have elapsed after the issuance and dishonour of the cheque. Therefore, this Court, while reducing the substantive sentence is bound to ensure that adequate compensation is given to the complainant. Accordingly, this Court is inclined to order that the petitioner should pay compensation of Rs.24,400/- (twice the cheque amount) to the complainant in terms of ::6:: Crl.R.P.No.1540 Of 2002 Sec.357(3) of the Cr.P.C. It is seen from the report dated 26.9.2017 that the petitioner had deposited an amount of Rs.5,000/- before the trial court in relation to this case on 30.11.2002 in compliance with this Court's interim order dated 26.11.2002. If that be so, the trial court will ensure that the said amount is released to the complainant and the trial court will issue necessary notice of intimation to the 1st respondent complainant for receiving the said amount. The said amount of Rs.5,000/- could be deducted from the total compensation amount of Rs.24,400/- payable by the petitioner. On default of the petitioner to pay the above said amount, he will have to undergo simple imprisonment for a period of one month. Accordingly, the following orders and directions are passed: - (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I. Act will stand confirmed. - (ii) The impugned substantive sentence of simple imprisonment for 2 months is modified and reduced as imprisonment till the rising of the court. - (iii) In supersession of the orders passed by the courts below, it is ordered that the petitioner shall pay the compensation amount of Rs.24,400/- in terms of Sec.357(3) of the Cr.P.C. - (iv) The petitioner is given 6 weeks' time from 1.10.2017 to remit the balance amount of Rs.19,400/- before the trial court. - (v) The petitioner will personally appear at 11:00 a.m. on 18.11.2017 to receive the sentence of imprisonment till the rising of the court and to remit the balance compensation amount. On receiving the said amount, the said amount shall ::7:: Crl.R.P.No.1540 Of 2002 also be disbursed tot he complainant after giving him necessary intimation in that regard. - (vi) Until 18.11.2017, all further coercive steps for execution of the impugned sentence in this case will stand deferred. - (vii) On default of the petitioner either to appear before the court below on 18.11.2017 or to make the payment as aforesaid, the trial court will be at liberty to take appropriate action in accordance with law. With these observations and directions, the Crl.R.P stands finally disposed of. Registry will forward a copy of this order to the trial court concerned as well as to the 1[st] respondent (complainant). Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P. A to Judge