SUJITH v. KS SUDHAKARAN & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939** **Crl.Rev.Pet.No. 865 of 2017 (C) -------------------------------CRA 17/2014 OF ADDITIONAL SESSIONS COURT - I, KASARAGOD** **CC 28/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD --------------** ## **REVISION PETITIONER/ APPELLANT/ACCUSED:** **--------------------------------------** **SUJITH, S/O JANARDHANAN NAIR,AGED 36,SUJITHRA BHAVAN, CHEMMANKALA,EDACODE.P.O,KANYAKUMARI,DISTRICT, TAMILNADU.** **BY ADV. SRI.M.SREEKUMAR** ## **RESPONDENT(S):RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------** **1. K.S.SUDHAKARAN, S/O.P.O.KRISHNAN NAMBIAR,'PRARTHANA',NEAR THIS, NAIMORMOOLA,MUTTATHODY POST,KASARGOD TALUK & DISTRICT-671123.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031.** **R1 BY ADV. SRI.JAWAHAR JOSE R2 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## ALEXANDER THOMAS, J. -------------------------- Crl.R.P. No. 865 of 2017 ------------------------------Dated this the 30[th] day of August, 2017 ## ORDER The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.28/2013 on the file of the Judicial First Class Magistrate Court-II, Kasaragod, instituted on the basis of a complaint filed by R-1 herein. The trial court as per the impugned judgment rendered on 31.12.2013 had convicted the petitioner for the above said offence and sentenced him to undergo imprisonment till the rising of the court and to pay a fine of Rs.1.5 lakhs and the same shall be paid to the complainant as compensation under Sec.357(3) of the Cr.P.C., and in default thereof the accused was sentenced to undergo simple imprisonment for a further period of 2 months. Aggrieved thereby, the petitioner has preferred Crl.A.No.17/2014 before the Sessions Court, Kasaragod. The appellate court concerned [Court of Additional Sessions Judge-I, Kasaragod], as per the impugned judgment dated Crl.R.P. No. 865 of 2017 2 23.11.2015 had upheld the conviction and sentence and thereby dismissed the appeal. It is aggrieved by these verdicts, that the petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C. 2. Heard Sri.M.Sreekumar, learned counsel for the petitioner, Sri.Jawahar Jose, learned counsel for R-1 and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State. 3. The allegations in the complaint is that towards discharge of liability of Rs.1,50,000/- owned by the accused to the complainant, the revision petitioner had issued Ext.P1 cheque dated 01.01.2012 of Rs.1,50,000/-. The cheque, when presented, was dishonoured due to insufficiency of funds as evident from Ext.P2 memo dated 27.03.2012 and hence the complainant had issued Ext.P3 statutory demand notice dated 23.04.2012 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 Crl.R.P. No. 865 of 2017 3 notice sent by registered post was duly received by the accused as per Ext.P4. Since the accused did not pay the amount, the complainant after fulfilling the requisite formalities, had instituted the present complaint which resulted in the trial. During the trial, the complainant has examined himself as PW1and was marked as Exts.P1 to P6 documents. The defence has not adduced any oral or documentary evidence. 4. On a careful analysis of the evidence on record, both the courts below have found that the case projected by the complainant is probable and credible. Moreover Exts.P5 & P5A dated 16.03.2011 would prove that the petitioner had remitted a total amount of Rs.1,50,000/- to the bank account of the accused and the fact that the said amount has been duly credited to the account of the accused has been proved on the basis of Ext.P6, which is the certified copy of the ledger account of the bank account in the name of the accused. The defence suggestion has been found by both the courts below to be unacceptable, and therefore, Crl.R.P. No. 865 of 2017 4 the defence set up by the revision petitioner has also been duly repelled by the courts below. 5. Both the courts below, after evaluating the documentary and oral evidence adduced by the parties, have concurrently found that the revision petitioner has executed Ext.P1 cheque as contemplated under Section 138 of NI Act. The concurrent findings on facts regarding the conviction of the petitioner, could be interfered with in this revision, only if it is established before this Court that the said findings of facts are perverse and unreasonable. No facts and circumstances could be brought to the notice of this Court to indicate that the impugned findings rendered by the courts below are tainted by any perversity or unreasonableness. The petitioner has not been able to convince this Court that the impugned judgments of both the courts below are in any manner vitiated by grave illegality or impropriety. In the result, the concurrent findings made by the courts below regarding the conviction of the petitioner is legally proper and correct and is not Crl.R.P. No. 865 of 2017 5 amenable for any revisional interference at the hands of this Court. 6. As far as the sentence is concerned, it is seen that the trial court had sentenced the revision petitioner/accused to undergo simple imprisonment till rising of the court and to pay fine of Rs.1,50,000/-, which is the cheque amount, with a default sentence clause of two months simple imprisonment. The fine amount so realised shall be disbursed to the complainant as compensation under Section 357(1)(b) of Cr.P.C. The appellate court has confirmed the sentence and fine imposed by the trial court. On a consideration of the issue, this Court is of the view that the impugned conviction, sentence and the direction to pay the fine amount cannot be said to be disproportionate or excessive. 7. Sri.M.Sreekumar, learned counsel for the revision petitioner/accused would submit that in case this Court is so inclined to confirm the impugned conviction, sentence and fine, then this Court may grant at least eight months Crl.R.P. No. 865 of 2017 6 time to pay the fine amount of Rs.1,50,000/- directly to the complainant. It is found that the petitioner has already deposited Rs.25,000/- before the trial court in relation to this case, in compliance with the order of this Court dated 21.08.2017. On the previous occasion, it is brought to the notice of this Court that the petitioner, is hailing from Tamil Nadu, has not cared to secure bail by executing bonds, at any point of time. Accordingly this Court had passed an order dated 21.08.2017 in Crl.M.A.No.4350/2017 in Crl.M.Appln.No.3878 of 2017 in this Crl.R.P, which reads as follows:- Heard Sri.M.Sreekumar, the learned counsel appearing for the revision petitioner/accused, Sri.Jawahar Jose, the learned counsel appearing for the 1[st] respondent/complainant and Sri.Saigi Jacob Palatty, the learned Public Prosecutor for the 2[nd] respondent State. 2. It is pointed out by the petitioner that he is hailing from Tamil Nadu and in spite of his earnest efforts, he could not arrange two solvent sureties having property in Kerala and though his father-inlaw, who is having landed property in Kerala, is willing to be a surety, the petitioner has been advised that Crl.R.P. No. 865 of 2017 7 since a bank loan is outstanding against the said property, the court cannot accept the petitioner’s father-in-law as a surety. 3. Accordingly, it is urged by the petitioner that he may be permitted to execute bond without sureties and that the order dated 21.07.2017 passed by this Court in Crl.M.A.No.3878/2017 in this Crl.R.P. may be suitably modified. It is also undertaken by the petitioner that he would deposit an amount of ₹ 25,000/- (Rupees twenty five thousand only) before the trial court . 4. Accordingly, in modification of the order dated 21.07.2017 passed by this Court in Crl.M.A.No.3878/2017 in this Crl.R.P., it is ordered in the interest of justice that the petitioner is permitted to execute the bond without sureties and the petitioner should execute a self bond, along with an affidavit furnishing his correct present address in Tamil Nadu and the petitioner should also deposit an amount of ₹ 25,000/- (Rupees twenty five thousand only) before the trial court in relation to this case on or before 29.08.2017. List this Crl.R.P. on 30.08.2017. 8. Now it is submitted by Sri.M.Sreekumar, learned counsel for the petitioner that, in compliance with the order of this Court dated 21.08.2017, the petitioner has executed Crl.R.P. No. 865 of 2017 8 a self bond and deposited Rs.25,000/- before the trial court and that he has also filed an affidavit showing his correct address in Kanyakumari district, Tamilnadu State. 9. Having regarding to this plea, this Court is of the view that time upto 8 months need not be granted and time upto 4 months is granted for making payment. Accordingly the following directions and orders are passed: - i. The impugned conviction, substantive sentence for simple imprisonment till rising of the court, and fine amount with default sentence clause of 2 months are confirmed. - ii. In case the petitioner has already deposited Rs.25,000/- before the trial court in relation to this case, then the court below shall immediately release the said amount to R1/complainant, on a request in that regard made by that party. If the petitioner has thus deposited any amount, then the said amount may be deducted from the total amount of Rs.1,50,000/- and then the petitioner Crl.R.P. No. 865 of 2017 9 will have to pay the balance fine/compensation amount of Rs.1,25,000/- (Rs.1,50,000-Rs.25,000) directly to the complainant and on receipt of such payments the complainant will issue necessary receipts so that the accused can present the same before the trial court to satisfy the said court about such payments. - iii.In such payments directly made by the accused to the complainant, will be treated as if those amounts have been paid as fine and then disbursed as compensation to the complainant in terms of Section 357(1)(b) of Cr.P.C. - iv.The petitioner is given time by 4 months from 01.09.2017 to make such payments. - v. Petitioner shall personally appear before the trial court at 11 a.m. on 06.01.2018 to suffer the sentence of imprisonment till rising of the court and to satisfy the trial court about payment of compensation amount to the complainant. Needless to say on default of the petitioner to pay the said amount, he will have to undergo simple Crl.R.P. No. 865 of 2017 10 imprisonment for a period of 2 months. vi.Until 06.01.2018 all coercive steps that may be taken against the petitioner for execution of the impugned sentence in this case will stand deferred. 9. Registry will forward a certified copy of this order to the trial court and R1/complainant. With these observations and directions, this Crl.R.P.will stand finally disposed of. sd/ALEXANDER THOMAS, JUDGE AMV/16/09/2017 /TRUE COPY/ P.A.TO JUDGE