Preman v. Madhavankutty & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF AUGUST 2017/15TH PHALGUNA, 1927** **Crl.Rev.Pet.No. 1201 of 2003 ( )** **--------------------------------CRA.121/2002 of SESSIONS COURT,THRISSUR ST.6478/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA** ## **REVISION PETITIONER(S):** **----------------------** **PREMAN, S/O MEPRATH KOCHUNNI, VALLISSERI, AVINISSERI.** **BY ADVS.SRI.U.O.JOSE SMT. M.A.ZOHRA** ## **RESPONDENT(S):** ## **--------------** **1 K.P. MADHAVANKUTTY, PARTNER, S/O STAR FINANCIERS, KODAKARA, THRISSUR DT. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **EL** ## ALEXANDER THOMAS, J. -------------------------- Crl.R.P. No. 1201 of 2003 ------------------------------Dated this the 22[nd] day of August, 2017 ## ORDER The petitioner herein is the accused for the offence punishable under Section 138 of NI Act in S.T.No.6478/1998 on the file of the Judicial First Class Magistrate Court, Irinjalakuda, instituted on the basis of a complaint filed by the 1[st] respondent herein. Ext.P4 is the dishonoured cheque dated 08.05.1998 is for Rs.1,50,000. 2. The trial court as per the impugned judgment rendered on 22.04.2002 has convicted the petitioner for the above said offence and has sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs.2,60,000/- to the complainant under Section 357(3) of Cr.P.C. Aggrieved thereby the petitioner had filed Crl.Appeal No.121/2002 before the Court of Sessions Judge, Thrissur. The appellate Sessions Court, as per the impugned judgment rendered on 25.03.2003 has confirmed the conviction, but has altered the substantive Crl.R.P. No. 1201 of 2003 2 sentence of six months simple imprisonment by reducing the same to three months simple imprisonment with a compensation of Rs.2,60,000/- along with a default sentence clause of simple imprisonment for three months. It is aggrieved by these concurrent verdicts of both the courts below, that the petitioner has preferred this instant revision petition. 3. The instant revision petition was filed as early as on 19.03.2003. This Court on 20.05.2003 had ordered notice to the 1[st] respondent and had also passed an interim order in this revision directing that the execution of the impugned sentence will stand suspended and bail granted to the petitioner on condition that the petitioner should execute bond for Rs.20,000/- with two solvent sureties to the like sum each to the satisfaction of the trial court concerned with a further condition that the petitioner should deposit 1/3[rd] of the cheque amount before the trial court within two months. 4. The office of the trial court concerned has now intimated the Registry telephonically that the petitioner had Crl.R.P. No. 1201 of 2003 3 deposited Rs.50,000/- before the trial court on 21.07.2003 in terms of an interim order passed by this Court on 20.05.2003. Though notice to the 1[st] respondent complainant was ordered by this Court as early as on 20.05.2003, the process fee has never been remitted by the petitioner and hence Registry was disabled from issuing notice to the 1[st] respondent. A perusal of the docket sheet would show that the Registry has repeatedly noted the fact that the petitioner has not cared to remit the process fee, but still so far no steps whatsoever has been taken by the petitioner in that regard. It was brought to the notice of this Court as can be seen from order dated 08.09.2015 that Sri.U.O.Jose, learned counsel appearing for the petitioner had expired. Thereupon this Court had passed order dated 23.09.2015 directing the Registry to send notice directly to the revision petitioner with the proposed hearing date as 05.10.2015. Though notice issued by the Registry has been duly received by the revision petitioner on 29.09.2015, the petitioner has not cared to make alternate arrangements for appearing before this Court. Therefore, this Court on Crl.R.P. No. 1201 of 2003 4 05.10.2015 had ordered that since there is no representation for the revision petitioner, Smt.M.A.Zohra, has been appointed as legal aid counsel. 5. Heard Smt.M.A.Zohra, learned counsel for the revision petitioner and Sri.Jestin Mathew, learned Public Prosecutor appearing for the 2[nd] respondent/State. 6. The gist of prosecution case is that, towards the discharge of a liability of Rs.1,50,000/-owned by the accused from the complainant, the revision petitioner/accused had issued Ext.P4 cheque, drawn from the account of the accused payable in favour of the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds as per Exts.P5 & P6. Thereupon the complainant had issued Ext.P7 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 said notice. The said notice sent by registered post was duly received by the accused as per Exts.P8 & P9. The accused had denied the liability and thereupon the complainant, after fulfilling the requisite Crl.R.P. No. 1201 of 2003 5 formalities, had instituted the present complaint which resulted in the trial. 7. During the trial, the complainant had examined himself as PW1 and has marked as Exts.P1 to P11 documents. The defence has adduced evidence through DW1 and has marked Exts.D1 & D2 documents. 8. Both the courts below, after evaluating the documentary and oral evidence adduced by the parties, have concurrently found that the revision petitioner has duly executed Ext.P4 cheque as contemplated under Section 138 of NI Act. The defence set up by the revision petitioner has also been repelled by the both the courts below. In view of the concurrent findings by both the courts below, this Court will not be justified in interfering with the same, unless those findings are found to perverse and illegal. No facts and circumstances could be brought to the notice of this Court to indicate that the concurrent findings rendered by the courts below are vitiated by any perversity or illegality. In these circumstances, the concurrent findings made by both the courts below regarding the conviction of the Crl.R.P. No. 1201 of 2003 6 petitioner is legally proper and correct and does not warrant any revisional interference at the hands of this Court. As regards the question of sentence, it is noted that the trial court had imposed substantive sentence of simple imprisonment for six months and to pay compensation of an amount of Rs.2,60,000/-. However, the appellat court has reduced the substantive sentence to three months simple imprisonment and has confirmed the compensation amount of Rs.2,60,000/- with a default sentence clause of three months simple imprisonment. The Apex Court has repeatedly held that the offence punishable under Section 138 of NI Act is essentially civil wrong, which has been given criminal overtones, and imposition of fine payable as compensation is sufficient to meet the ends of justice. So also, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over the punitive aspects. 9. As per the intimation received by the Registry of this Court on 10.08.2017, it has been reported by the office of the trial court that the petitioner has deposited Crl.R.P. No. 1201 of 2003 7 Rs.50,000/- before the trial court on 21.07.2003. Therefore the substantive sentence of three months simple imprisonment could be reduced to simple imprisonment till rising of the court. However, taking note of the fact that Ext.P4 dishonoured cheque was issued as early as on 08.05.1998, the compensation amount has to be enhanced to at least Rs.3,00,000/- (twice the cheque amount). Accordingly the following directions and orders are passed:- - i. The impugned conviction, imposed on the petitioner for the offence punishable under Section 138 of NI Act will stand confirmed. - ii. The impugned substantive sentence of simple imprisonment for three months in this case will stand modified and reduced as simple imprisonment till rising of the court. - iii.It is to be noted that as the petitioner has not even - bothered to pay the process fee or taking out notice - to the 1[st] respondent/complainant, inspite of the order issued by this Court as early as on Crl.R.P. No. 1201 of 2003 8 - 20.05.2003, if the compensation amount is not suitably enhanced, it will amount to grave injustice on the complainant. - iv.The amount of Rs.50,000/- deposited by the petitioner before the trial court should be forthwith released to the complainant on a request in that regard made by that party. The petitioner will have to pay the balance compensation amount of Rs.2,50,000/(Rs.300000-Rs.50,000) as compensation in terms of Section 357(3) of Cr.P.C. - v. In supersession of the orders passed by the courts below, it is ordered that the petitioner is given five months' time from 01.09.2017 to pay the balance compensation amount of Rs.2,50,000/(Rs.3,00,000-Rs.50,000) (Rupees Two lakhs fifty thousand only) and the said amount shall be disbursed as compensation to the complainant, in terms of Section 357(3) of Cr.P.C. On default of the petitioner to pay the above said amount he will have to suffer simple imprisonment for a period of three months. Crl.R.P. No. 1201 of 2003 9 vi.The petitioner will personally appear before the trial - court at 11.A.M. on any day on or before 03.02.2018 to suffer the simple imprisonment till rising of the court and to remit the balance compensation amount of Rs.2,50,000/- before the trial court concerned. vii.Until 03.02.2018 all coercive steps that may be - taken against the petitioner for execution of the impugned sentence in this case will stand deferred. 10. Registry will forward a certified copy of this order to trial court and to R1/complainant. With these observations and directions, this Crl.R.P.,will stand finally disposed of. Sd/ALEXANDER THOMAS, JUDGE AMV/11/09/2017 /TRUE COPY/ P.A.TO JUDGE