M. A. Asharaf v. V. P. Varghese and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939** ## **Crl.Rev.Pet.No. 2591 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.A. NO.342/2002 OF ADDITIONAL SESSIONS COURT, NORTH PARAVUR DATED 20-08-2003. AGAINST THE JUDGMENT IN CC. NO.166/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR DATED 21-05-2002.** **....** ## **PETITIONER/APPELLANT/ACCUSED:** **-----------------------------------------------------** **M.A. ASHARAF, S/O. MOIDU, ALAKKATTU HOUSE, PALLIKKAVALA, MUDICKAL P.O., MARAMPILLY VILLAGE, PALLIPREM KERA, KUNNATHUNADU TALUK.** **BY ADV. SRI.P.ALI.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **------------------------------------------------------------------------** **1. V.P. VARGHESE, S/O. PAILY, VETTUVELIKUDY HOUSE, PULLUVAZHI KERA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.Rev.Pet.No. 2591 of 2003** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1 JUDGMENT OF JUDICIAL FIRST CLASS MAGISTRATE COURT PERUMBAVOOR IN C.C. NO.166/1998 DATED 21/05/2002. ANNEXURE A2 JUDGMENT OF THE ADDITIONAL SESSIONS COURT NORTH PARAVUR IN CRL.A. NO.342/2002 DATED 20/08/2003.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **ALEXANDER THOMAS, J. ---------------------------Crl.R.P.No. 2591 of 2003** **----------------------------** Dated this the 26[th] day of September, 2017 ## **O R D E R** The petitioner is the accused for offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.166 of 1998 on the file of the Judicial First Class Magistrate Court, Perumbavoor, instituted on the basis of a complaint filed by the 1[st] respondent herein. Ext.P1, dishonoured cheque dated 25.05.1997 is for Rs.1,00,000/-. The trial court as per the impugned judgment rendered on 21.05.2002 has convicted the petitioner for the above said offence and has sentenced him to undergo simple imprisonment for 6 months and to pay fine of Rs.5,000/- and in default of payment of the fine he has been ordered to undergo simple imprisonment for a period of one month. The petitioner has filed Criminal Appeal No.342 of 2002 before the Court of Additional Sessions Judge, North Paravur to impugne the above said trial court verdict. The appellate court as per the impugned judgment rendered on 20.8.2003 has dismissed the appeal and thereby affirmed the conviction and Crl.R.P.No. 2591 of 2003 2 sentence imposed in this case. Challenging the concurrent verdicts of both the courts below the petitioner has preferred the instant revision petition. 2. The revision petition was filed as early as on 7.10.2003. This Court as per order dated 13.10.2003 has admitted this revision petition and had passed interim order dated 13.10.2003 on Crl.M.A.10344 of 2003, directing that the execution of the impugned sentence will be suspended on executing a bond for Rs.25,000/- and on furnishing two solvent sureties for the like sum to the satisfaction of the trial court concerned and the petitioner has to deposit an amount of Rs.50,000/- within one month from today. The trial court has now furnished report dated 3.08.2017 to the Registry of this Court stating that the petitioner had deposited an amount of Rs.50,000/- before that court in CRCD on 27.12.2003 in compliance with this Court’s order. It is reported by the Registry that so far service of notice on R1 has not been duly completed. 3. The gist of the allegation of the complaint is to the effect that towards a liability of Rs.1,00,000/- owed by the accused to the complainant, revision Petitioner (accused) had issued Ext.P1 cheque dated 25.05.1997 drawn from his account Crl.R.P.No. 2591 of 2003 3 payable in favour of the complainant which when presented was dishonored on the ground of insufficiency of funds. That the complainant had then send Ext.P3 statutory demand notice calling upon the accused to pay off the amount covered by the cheque within a period of 15 days from the date of receipt of the notice. The said notice has been duly served, but the accused had not paid the amount and the complainant was constrained to issue the present complaint which resulted in the trial. During the trial the complainant was examined as PW1(complainant) and Manager of S.B.T. Mudickal Branch as PW2 and has marked Exts.P1 to P4 documents. The defence had not adduced any oral or documentary evidences. The courts below, after carefully evaluating the oral and documentary evidence on record, had concurrently found that the revision petitioner had duly executed Ext.P1 cheque as contemplated under Section 138 of the NI Act. The defence set up by the revision petitioner has been duly considered by the courts below since there are concurrent findings and facts regarding the conviction of the petitioner and this Court would not be justified in interfering with the same, unless the said findings are established to be perverse or incorrect. No facts and circumstance has been brought to the Crl.R.P.No. 2591 of 2003 4 notice of this Court to indicate that the findings of both the courts below are in any manner vitiated by gross perversity or illegality. In these circumstances, the said concurrent findings of the courts below that the revision petitioner has committed the offence punishable under Section 138 of the NI Act, does not warrant any interference. 4. As far as sentence is concerned it is seen that both the courts below have imposed substantive sentence of simple imprisonment for six months and to pay a fine of Rs.5,000/- with default sentence clause of simple imprisonment for one month. Having regard to the legal principles laid down by the Apex Court in **Damodar S. prabhu v. Sayed Babalal** reported in **(2010 (2) KLT 587(SC), Kaushalya Devi Massant vs. Roopkishore** reported in **AIR 2011 SC 2566** etc., this Court is inclined to reduce the substantive sentence of simple imprisonment for six months to imprisonment till rising of the court. However any such modification to be done in such a manner that necessary orders are also passed to ensure that justice is done to the complainant. In the instant case, Ext.P1 dishonoured cheque for Rs.1,00,000/- has been issued as early as on 25.05.1997 and the same has been dishonoured on 4.10.1997. More than 20 long Crl.R.P.No. 2591 of 2003 5 years have elapsed after the dishonor of the cheque. It is ordered that petitioner should pay compensation of Rs.1,50,000/-. In view of the report furnished by the trial court, it is seen that an amount of Rs.50,000/- has already been deposited by the petitioner before the trial court on 27.12.2003. The said deposited amount of Rs.50,000/- could be deducted from the total compensation amount of Rs.1,50,000/- and the petitioner need to pay the balance compensation of Rs.1,00,000/-. The trial court shall forthwith take steps to ensure that the deposited amount of Rs.50,000/- is released to the complainant and the trial court shall issue notice to the complainant for receiving the said amount. Accordingly, the following orders and directions are passed. - _(i) The impugned conviction imposed on the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act in this case will stand confirmed._ - _(ii) The impugned substantive sentence of simple imprisonment for six months will stand modified and reduced as imprisonment till rising of the court._ - _(iii) The amount of Rs.50,000/- already deposited should be released forthwith by the trial court to the complainant, after issuing him notice of intimation. The petitioner is given 4 months' time to pay the balance compensation amount of Rs.1,00,000/-._ - _(iv) The petitioner will personally appear before the trial court at 11.a.m on any day on or before 3.02.2018 to receive the sentence of imprisonment till rising of the court and to remit the balance compensation amount of Rs.1,00,000/- (Rupees One lakh only). Such amount so remitted should also be forth with released to the complainant as compensation in terms of Sec.357(1)(b) of Cr.P.C. On default of the petitioner to pay the amount, the petitioner will have to suffer simple imprisonment for a period of two months._ Crl.R.P.No. 2591 of 2003 6 - _(v) Until 3.02.2018 all further coercive steps that may be taken against the petitioner for execution of the sentence in this case will stand deferred._ - _(vi) On the default of the petitioner either to appear before the trial court on 3.02.2018 or on his default to pay the fine amount, the trial court will be at liberty to proceed against the petitioner in accordance with law._ The Registry will forward copy of this judgment to R1 (complainant) as well as the trial court. With these directions and observations the Crl.R.P stands disposed of. Sd/- ## **ALEXANDER THOMAS** **JUDGE** IAP