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2017 DIGILAW 730 (KER)

MINI K. v. B. PRASAD

2017-04-11

ALEXANDER THOMAS

body2017
ORDER : The revision petitioner is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.442 of 2007 on the file of the Judicial First Class Magistrate Court, Paravoor, instituted on the basis of a complaint filed by the first respondent herein. 2. The trial court, as per the impugned judgment rendered on 29.7.2013, had convicted the petitioner for the abovesaid offence and had sentenced her to undergo simple imprisonment for a period of three months and to pay compensation of Rs.90,000/- to the complainant and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a period of one month. 3. Aggrieved thereby the petitioner had preferred Crl. Appeal No. 258 of 2013 before the Sessions Court, Kollam. The appellate court concerned (Court of the Additional Sessions Judge-IV, Kollam), as per the impugned judgment rendered on 23.11.2015, had confirmed the conviction, but had modified the sentence by setting aside the impugned substantive sentence of simple imprisonment for three months and had reduced the same to imprisonment till the rising of the court. The accused was also ordered to pay fine of Rs.90,000/- and in default thereof, she was ordered to undergo simple imprisonment for a period of one month and the fine amount so realised was directed to be paid as compensation to the complainant under Section 357(1) of the Cr.P.C. 4. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 5. Heard Sri. C.R. Vijayakumaran Pillai, learned counsel appearing for the revision petitioner/accused, Sri.B.Mohanlal, learned counsel appearing for R1/complainant, and Sri.Jestin Mathew, learned prosecutor appearing for R2/State. 6. The gist of the prosecution case is that towards discharge of the liability owed by the accused to the complainant, the revision petitioner/accused had issued Exhibit P1 cheque dated 8.5.2007 for an amount of Rs.90,000/- payable in favour of the complainant and the cheque when presented resulted in dishonour on the ground of ‘insufficiency of funds'. Thereupon the complainant had preferred Exhibit P3 statutory demand notice, calling upon the accused to make payment of the amount covered by the cheque within a period of 15 days from the date of receipt of such notice. Thereupon the complainant had preferred Exhibit P3 statutory demand notice, calling upon the accused to make payment of the amount covered by the cheque within a period of 15 days from the date of receipt of such notice. The petitioner/accused had send a reply denying the transaction saying that the transaction was actually with the complainant's sister, in which the part payment was also made and that the cheque given to the complainant's sister has been misused by the complainant in the instant case. Thereafter, the complainant has preferred the instant complaint, which was resulted in the trial. 7. During trial, the complainant has examined himself as PW1 and the prosecution has marked Exhibits P1 to P5 documents. The defence has examined as DW1, who is the sister of the accused. 8. Both the courts below, after carefully evaluating the oral and documentary evidence adduced by the parties, had concurrently found that the revision petitioner/accused has executed Exhibit P1 cheque as contemplated under Section 138 of the Negotiable Instruments Act. The defence set up by the revision petitioner/accused that the transaction was actually with the sister of the complainant and that part payment has also been made to that party and that the cheque in question issued as security to that person has been misused by the present complainant was repelled by both the courts below on the ground that those suggestions of the defence have not been clinchingly brought out in the evidence. The said concurrent findings rendered by both the courts below are based on proper factual appreciation of evidence on record and the said factual findings of conviction rendered by both the courts below cannot be said to be unreasonable or perverse. Therefore, the petitioner has not been able to make out any grounds for exercising the powers of the revision to interfere with the said concurrent findings regarding the issue of conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act. As regards the question of sentence, it is to be noted that the trial court has sentenced the petitioner to undergo simple imprisonment for three months and fine of Rs.90,000/- (cheque amount) with a default sentence of one month imprisonment. As regards the question of sentence, it is to be noted that the trial court has sentenced the petitioner to undergo simple imprisonment for three months and fine of Rs.90,000/- (cheque amount) with a default sentence of one month imprisonment. The appellate court has modified the substantive sentence of simple imprisonment for three months to imprisonment till the rising of the court and has confirmed the direction to pay fine of Rs.90,000/- with the default clause of one month imprisonment and also the direction that the said fine amount so realised shall be paid to the complainant as compensation under Section 357(1) of the Cr.P.C. The said modified sentence imposed by the appellate court cannot be said to be harsh or disproportionate. Therefore, there are no grounds to interfere with the impugned modified sentence imposed by the appellate court. 9. Faced with the situation, Sri. C.R. Vijayakumaran Pillai, learned counsel appearing for the revision petitioner/accused, submits that the parties are close relatives and the petitioner may be given permission to seek out of court settlement with the complainant and that this Court may grant four months' time to pay the compensation/fine amount. As the parties are close relatives, the petitioner is given permission to seek out of court settlement with the complainant. If both sides so agree, then the petitioner need to pay only the amounts that may be agreed to by the complainant. In this context, it is relevant to note that as per the interim order dated 19.8.2016, it has been recorded that the petitioner's counsel has then submitted that the petitioner has already deposited 1/3rd of the fine amount before the trial court in compliance with this Court's earlier interim order dated 25.2.2016 passed in this revision. In case the petitioner has already deposited Rs.30,000/- or some such other amounts before the trial court, in relation to this case, then the trial court will ensure that the said amount is released to the first respondent/complainant without any further delay. The petitioner will pay the balance amounts directly to the complainant. Accordingly, the following orders and directions are passed : (i) The impugned conviction imposed on the petitioner in this case will stand confirmed. The petitioner will pay the balance amounts directly to the complainant. Accordingly, the following orders and directions are passed : (i) The impugned conviction imposed on the petitioner in this case will stand confirmed. (ii) If the petitioner has deposited any amounts in relation to this case before the trial court during the pendency of the appeal or this revision, then the trial court will take immediate steps to ensure that the said amount is released to the first respondent/ complainant without any further delay on an application to that effect made by that party. (iii) The petitioner is given permission to seek out of court settlement with the complainant. If parties agree to any reduced amount of compensation/fine, then the petitioner will pay such balance amounts directly to the complainant, after deducting any deposited amounts released by the trial court to the complainant. The complainant will issue receipts evidencing such payments, which the petitioner will produce before the trial court for satisfying that court about such payments. Any such payments will be treated as if it has been paid as fine and then disbursed to the complainant as compensation in terms of Section 357(1)(b) of the Cr.P.C. (iv) The petitioner is given four months' time from 15.4.2017 to make payments of the above due amounts. (v) The petitioner will personally appear before the trial court at 11 A.M. on 19.8.2017 to receive the sentence of imprisonment till the rising of the court and to satisfy the trial court about payments of the above due amounts. (vi) Until 19.8.2017, all further coercive steps including NBW against the petitioner for execution of the impugned sentence shall stand deferred. With these observations and directions, the Crl. Revision Petition stands finally disposed of.