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2017 DIGILAW 84 (KER)

SATHEESH KUMAR K. v. SHEELAVATHI

2017-01-11

ALEXANDER THOMAS

body2017
ORDER : The petitioner has been convicted for the offence under Sec.138 of the N.I Act as per the judgment dated 23.05.2016 of the Judicial 1st Class Magistrate Court No.II, Hosdurg in S.T. No.108/2005. The same was affirmed by the judgment dated 24.04.2009 of the Additional Sessions Court (Adhoc-III), Kasargod in Crl. Appeal No.277/2006. Aggrieved by the said conviction and sentence the petitioner had approached this Court by filing Crl. R.P. No.1847/2009 which was disposed of by this Court as per Anx.A-1 judgment on 09.10.2015 which reads as follows: "The revision petitioner is the accused in S.T.No.108 of 2005 on the files of the court of the Judicial Magistrate of First Class-II, Hosdurg. 2. The trial court convicted the revision petitioner under Section 138 of the Negotiable Instruments Act and sentenced her thereunder to simple imprisonment for six months and to pay an amount of Rs.1,00,000/- to the complainant as compensation under Section 357 (3) Cr.P.C. The appeal filed against the said conviction and sentence was dismissed. Aggrieved by the said conviction and sentence, this revision petition has been filed. 3. Heard both sides. 4. The prosecution allegation is that towards the discharge of the liability to the complainant, the revision petitioner issued Ext.P1 cheque in favour of the complainant. The complainant presented the said cheque for encashment. However, the same was dishonoured as the account was closed by the revision petitioner. Statutory notice was issued to the revision petitioner, which was received by the revision petitioner. However, the revision petitioner did not make payment of the cheque amount within the statutory period or thereafter. 5. Before the court below, PW1 was examined and Exts.P1 to P5 were marked for the complainant. DW1 was examined and Ext.D1 was marked for the revision petitioner. 6. The courts below, after evaluating the oral and documentary evidence adduced by the parties, concurrently found that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I Act. The defence set up by the revision petitioner was also repelled by the courts below. Since there is concurrent finding on facts, this Court will not be justified in interfering with the same, unless the finding is perverse or incorrect. No circumstance has been brought to my notice to indicate that the concurrent finding by the courts below is perverse or incorrect. Since there is concurrent finding on facts, this Court will not be justified in interfering with the same, unless the finding is perverse or incorrect. No circumstance has been brought to my notice to indicate that the concurrent finding by the courts below is perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the offence under Section 138 of N.I Act does not warrant any interference by this court. 7. As regards the sentence, the learned counsel for the revision petitioner has pleaded for leniency. The cheque is for an amount of Rs.1,00,000/-. Considering the facts and circumstances of the case, including the amount covered by Ext.P1 cheque, I am of the view that the sentence awarded by the courts below can be modified and reduced to imprisonment till the rising of the court and fine of 1,00,000/- to secure the ends of justice. Accordingly, I order so. In the result, this revision petition stands allowed in part, (i) confirming the verdict of guilty and conviction passed by the courts below under Section 138 of the Negotiable Instruments Act. (ii) the sentence awarded by the courts below under Section 138 of the Negotiable Instruments Act stands modified and reduced to imprisonment till the rising of the court and a fine of Rs.1,00,000/- (Rupees one lakh only). (iii) in default of payment of fine, the revision petitioner shall undergo simple imprisonment for two months. (iv) in the event of realisation of fine, the entire amount shall be given to the complainant as compensation under Section 357 (1) (b) Cr.P.C. The revision petitioner is granted six months time to pay the fine as requested by the learned counsel for the revision petitioner." 2. The petitioner has filed the aforecaptioned Crl.M.C. With the following prayers: "(i) To recall the arrest warrant against the petitioner for the execution of the default sentence ordered in Crl.R.P.No.1847/2009 on the file of the Hon'ble High Court of Kerala. (ii) Issue direction to the learned Judicial 1st Class Magistrate No.II, Hosdurg to accept the amount as directed by the Hon'ble High Court in Crl.R.P.No.1847/2009. (ii) Issue direction to the learned Judicial 1st Class Magistrate No.II, Hosdurg to accept the amount as directed by the Hon'ble High Court in Crl.R.P.No.1847/2009. (iii) Issue direction to the learned Judicial 1st Class Magistrate No.II, Hosdurg to fix a time the petitioner to undergo simple imprisonment till the risingissued court of the in compliance to directions in Crl.R.P.No.1847/2009 on the file of the Hon'ble High Court of Kerala." 3. Heard Sri.C.K.Sreejith, learned Counsel appearing for the petitioner and Sri.Saiji Jacob Palatty, learned Public Prosecutor appearing for the 2nd respondent State of Kerala. In the nature of the reliefs sought for granting this petition, notice to R-1 (complainant) stands dispensed with. It is submitted by Sri.C.K.Sreejith, the learned Counsel for the petitioner that though the petitioner could not deposit the fine amount within the time stipulated in Anx.A-1 judgment, he intends to make the deposit but that the Court below is not accepting the said amount on the ground that the time granted by this Court had already expired. The petitioner would contend that the default sentence clause cannot be enforced if the accused is prepared to pay the fine amount and in this regard the learned Counsel for the petitioner would place reliance on the legal principles laid down by this Court in Gireesh V. Muthoot Capital Service (P) Ltd. reported in 2007(1) KLT 16, Beena V. Balakrishnan Nair reported in 2010 (2) KLT 1017 and Sreedharan V. Bharathan reported in 2014 (1) KLT 236 (DB), etc. 4. Considering the pleas made by the petitioner, this Court is of the view that the time for payment of the fine amount could be extended suitably in the interest of justice. Accordingly it is ordered that the time for payment of the fine amount of Rs.1,00,000/- (Rupees One lakh only) will stand extended by a further period of 2 months from today. It is for the petitioner to appear before the Trial Court on any day on or before 15.03.2017 and to suffer the imprisonment till the rising of the Court and pay the fine amount of Rs.1,00,000/- (Rupees One lakh only). Until the expiry of the said extended time limit all further coercive steps including issuance of warrant if any, in pursuance of the execution of the sentence in this case will stand under suspension. The learned Public Prosecutor will convey these directions the competent police authorities for necessary compliance. Until the expiry of the said extended time limit all further coercive steps including issuance of warrant if any, in pursuance of the execution of the sentence in this case will stand under suspension. The learned Public Prosecutor will convey these directions the competent police authorities for necessary compliance. With these observations and directions the Crl.M.C. stands finally disposed of.