V. Mohanan v. State of Kerala and N. I. Krishnan Namboodiri

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** ## **Crl.Rev.Pet.No. 2059 of 2003 ( )** **--------------------------------CRA 502/2001 of III ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR ST 1803/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR** **------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **-------------------------------------------------------------------** **V.MOHANAN, S/O.KRISHNAN, WELUTHEDATH HOUSE, KURICHIKARA, THANIKKUDOM, THRISSUR.** **BY ADV. SRI.M.V.MATHEW** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT :** **---------------------------------------------------------------------------------** **1. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR,** - **HIGH COURT OF KERALA, ERNAKULAM.** ## **2. N.I.KRISHNAN NAMBOODIRI,** **S/O. GOVINDAN NAMBOODIRI, NEELAMANA ILLAM, P.O. CHEROOR, TRICHUR.** **R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## ALEXANDER THOMAS, J. ----------------------------Crl.R.P.No.2059 Of 2003 --------------------------------- Dated this the 9th day of October, 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.1803/1999 on the file of the Judicial First Class Magistrate Court-II, Thrissur, instituted on the basis of a complaint filed by the 2[nd] respondent herein. Ext.P-1 dishonoured cheque dated 5.10.1998 is for Rs.8,000/-. The trial court as per the impugned judgment rendered on 16.10.2001 has convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for a period of 3 months and also ordered him to pay compensation of Rs.12,000/- and in default thereof to undergo simple imprisonment for a further period of 3 months. Aggrieved thereby the petitioner has preferred Criminal Appeal No.502/2001 before the appellate Sessions Court. The appellate Sessions Court concerned [Court of Additional Sessions Judge-III (Adhoc) Fast Track Court No.1, Thrissur], as per the impugned judgment rendered on 29.7.2003 had dismissed the appeal and thereby the confirmed the ::2:: Crl.R.P.No.2059 Of 2003 impugned conviction as well as the sentence. It is challenging these judgments of the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies conferred under Sec.397 read with Sec.401 of the Code of Criminal Procedure. 2. The Criminal Revision Petition was filed by the petitioner as early as on 14.8.2003. This Court as per order dated 18.8.2003 had admitted the Revision Petition and has granted interim order dated 18.8.2003 in Crl.M.A.No.8374/2003 in this revision petition directing that the sentence of imprisonment will stand suspended on condition that the petitioner shall execute a bond for Rs.3,000/- with two solvent sureties for the equal amount to the satisfaction of the trial court concerned. 3. Notice to R-1 State was taken by PP. Notice to R-2 was taken out and the same was returned with the endorsement unserved stating “not known”. Thereafter, this Court, as can be seen from the subsequent order dated 25.8.2003, directed the petitioner to take fresh steps to R-2 through Circle Inspector of Police, Thrissur. But the petitioner has not cared to take any steps. Later, the petitioner has taken out notice on 2.7.2015 to R-2 through the Circle Inspector of Police, Thrissur Town (East) Police Station. The said notice was also returned ::3:: Crl.R.P.No.2059 Of 2003 unserved stating that “addressee left and shifted”. Thereafter, the petitioner has not taken any steps to ascertain the present correct address of R-2 and to take fresh notice to R-2 in such new address. 4. Heard Sri.M.V.Mathew, learned counsel appearing for the revision petitioner-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 5. Sri.M.V.Mathew, learned counsel appearing for the petitioner submits that for a very long time the petitioner has not contacted the counsel and has not furnished any instructions. However, since the revision petition was formally admitted by this Court, this Court is inclined to consider the merits of the matter. 6. The case of the petitioner is to the effect that in discharge of the liability of Rs.8,000/- owed by the accused to the complainant, the revision petitioner-accused had issued the instant Ext.P-1 cheque dated 5.10.1998 for Rs.8,000/- drawn from his account and payable in favour of the complainant and the cheque when presented was resulted in dishonour, which resulted the complainant in issuing statutory demand notice under Sec.138 proviso (b) of the N.I. Act calling upon the revision petitioner-accused to pay the amount covered by the cheque within the requisite time. Since the amount was not paid, after ::4:: Crl.R.P.No.2059 Of 2003 adhering to the procedural formalities, the complainant has instituted the instant complaint which resulted in trial. During trial, complainant was examined as PW-1 and marked Exts.P-1 to P-8 documents. The defence has examined DWs 1 & 2 and marked Exts.D-1 to D-4 documents. The courts below, after meticulously evaluating the oral and documentary evidence on record adduced by the parties, have concurrently found that the revision petitioner has duly executed Ext.P-1 cheque and the defence set up by the accused has been considered and repelled by the courts below. It is in the light of these findings of fact, that the courts below have found concurrently that the petitioner is liable to be convicted for the offence under Sec.138 of the N.I. Act. These findings of facts cannot be said to be perverse or unreasonable and therefore, this Court is of the view that this Court will not be justified to interfere in a matter like this by taking recourse to the revisional powers conferred on this Court. As regards the sentence, it is seen that the appellate court has reduced the substantive sentence of simple imprisonment for 3 months and has ordered compensation of Rs.12,000/- with default sentence clause of 3 months' simple imprisonment. Having regard to the legal principles laid down by the Apex Court as in Damodar S.Prabhu v. Sayed Babalal , reported in AIR ::5:: Crl.R.P.No.2059 Of 2003 2010 SC 1907 and Kaushalya Devi v. Roopkishore, reported in AIR 2011 SC 2566, this Court is inclined to reduce the substantive sentence to simple imprisonment till the rising of the court. However, any such reduction of substantive sentence should be in such a manner to adequately compensate the complainant. Ext.P-1 dishonoured cheque for Rs.8,000/- was issued as early as on 5.10.1998. 19 long years have lapsed after the issuance of the dishonoured cheque. Therefore, it is ordered that the compensation amount is enhanced to Rs.16,000/(twice the cheque amount). However, the default sentence of 3 months' simple imprisonment appears to be highly excessive and the same is reduced to simple imprisonment for one month. Notice sent to R-2 on 2.7.2015 has been returned with the endorsement “addressee left and shifted”. Accordingly, it is ordered that the PP will ensure that an effective and proper enquiry is conducted by the Circle Inspector of Police of the area concerned/District Police Chief to ascertain the correct present whereabouts and correct new address of R-2 complainant and the said police official shall furnish a report in that regard showing the present new address to the trial court concerned (Judicial First Class Magistrate Court-II, Thrissur), which dealt with S.T.No.1803/1999. Enquiries in this regard should be completed by the competent police ::6:: Crl.R.P.No.2059 Of 2003 official concerned within 6 weeks from the date of receipt of a copy of this judgment. The prosecutor will ensure that a copy of this order is served on the District Police Chief/Circle Inspector of Police of the area concerned, for facilitating the enquiry as directed hereinabove. The petitioner is given 2 months' time from 15.10.2017 to pay the compensation amount of Rs.16,000/-. Accordingly, the following orders and directions are issued: - (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 3 months' simple imprisonment will stand reduced to imprisonment till the rising of the court. - (iii) In modification of the orders passed by the courts below, the petitioner shall pay compensation of Rs.16,000/- which shall be disbursed to the complainant in terms of Sec.357(3) of the Cr.P.C. On default of the petitioner to pay the above said amount, he will have to undergo simple imprisonment for a further period of one month. - (iv) The petitioner is given 2 months' time from 15.10.2017 to remit the compensation amount of Rs.16,000/- before the trial court. - (v) The petitioner will appear at 11:00 a.m. on any day on or before 16.12.2017 to receive the sentence of imprisonment till the rising of the court and to remit the compensation amount of Rs.16,000/-. Upon receiving the compensation amount, the trial court will issue necessary notice of intimation to the complainant on the basis of the addresses that may be furnished in that regard by the competent police official in the enquiry which has been directed to be conducted hereinabove. ::7:: Crl.R.P.No.2059 Of 2003 - (vi) Until 16.12.2017, all further coercive steps taken against the petitioner in execution of the impugned sentence will stand deferred. - (vii) On default of the petitioner either to appear before the court below on 16.12.2017 or to make payment as aforesaid, the trial court will be at liberty to proceed against the petitioner 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 the trial court for necessary information. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // true copy // P.A to Judge.