Back
2003 (4) Crimes 329
KERALA HIGH COURT
R. Basant. J.
Anilkumar -Petitioner
versus
Shammy - Respondent
Crl. R.P. No. 947 of 2000
Decided on 25-10-2002
Counsel for the parties:
For the Petitioner:Mr. Shaijan C. George, Advocate.
For the Respondent: Mr. K.A. Jaleel, Mr. C. Anilkumar & Mr. Sujith Mathew Jose, Public Prosecutor.
IMPORTANT POINT
In a successful prosecution u/s. 138 of Negotiable Instruments Act a direction u/s. 357 Cr. P.C. must follow & only when sufficient & compelling reasons are there court must specify such reasons to not to invoke powers u/s. 357 Cr. P.C.
Headnote:(i) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Accused-petitioner was the brother-In-law of complainant Cheque for Rs. 3 lakhs was issued in complainant's favour pursuant to settlement of dispute between complainant wife & her husband, brother of accused under an agreement Ex1 - Cheque bounced Defence plea that complainant was not competent to present the cheque before marriage was dissolved as agreed - Conviction by Courts below - Revision - Contention that cheque had not been issued for due discharge of a legally enforceable debt/liability - No merit in contention as even if accused had no personal liability to complainant Concurrent finding regarding incapability of accused called for no interference,(Para 6)
(ii) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Section 357(3) - Dishonour of cheque for Rs, 3 lakhs - Courts below convicted accused petitioner & sentenced him one year imprisonment – Revision Question of sentence - Care must be taken that term of imprisonment was not unduly and unnecessarily long endeavour be to ensure that victim of crime was adequately compensated Expression compensation in section 357(3) Cr. P.C. was not in any technical sense & must include payment due to victim under the cheque in question - Sentence of petitioner reduced to one month imprisonment & directed to pay Rs. 3,10,000/- to complainant & in default to undergo 60 day. imprisonment. (Paras 10, 11, 14, 17 & 18)
Result: Revision allowed partly.
ORDER
R. Basant, J. - This Revision Petition is directed against the judgment dated 31st August 2000 passed by the 5th Additional Sessions Judge. Ernakulam in Crl. Appeal No. 485/98. By a common judgment order rendered in Crl. Appeal 485/98 and Crl. R.P. 431 99 the learned Sessions Judge had upheld the judgment dated 18-11-1998 passed by the learned Judicial First Class Magistrate, North Parur in C.C. 559/96. By the said judgment the learned Magistrate had found the accused guilty of the offence punishable' under S. 138 of Negotiable Instruments Act. He was convicted and sentenced to undergo simple imprisonment for a period of one year.
2. The complainant alleged that the revision petitioner/accused had issued Ext. P2 cheque to her for an amount of Rs. Three lakhs. The accused is the brother-in-Iaw of the complaint. When the matrimonial life ran into rough weather. because of differences of opinion between the spouses an agreement (Ex PI) was executed between the concerned parties. At the time of settlement of the disputes Ext.P2 cheque for Rs. Three lakhs was allegedly issued by the accused/revision petitioner to the complainant. The said cheque when presented for encashment was dishonoured by the bank on the ground that sufficient amount is not available in the account. Ext.P5 notice of demand was issued. It was duly received and acknowledged. It evoked Ext.P8 reply. But no payment was made as demanded. The accused took the stand that the complainant is not compelete to present the cheque before the marriage was dissolved as agreed by the contestants. It was also contended that the cheque was issued under threat duress and coercion.
3. During the course of trial the complainant examined herself as P.W.1 and the Bank Manager as PWs.2. Exts. P1 to P10 were marked. During the course of trial the accused repeated his stand which he took up in Ext.P8 reply notice - that the cheque was not issued for the due discharge of any legally enforceable debt/liability. According to him it was issued under duress. He had no liability to the complainantit was further alleged. No defence evidence was adduced.
4. The learned Magistrate initially, and the learned Sessions Judge subsequently, came to the conclusion, that all ingredients of the offence punishable under S. 138 of Negotiable Instruments Act have been established beyond doubt. Accordingly' the learned Sessions Judge proceeded to pass the impugned judgment.
5. The revision petitioner/accused assails the impugned judgment on the following grounds;
(1) The courts below erred in coming to the conclusion that the cheque was issued for the due discharge of a legally enforceable debt/liability.
(2) The sentence imposed is at any rate excessive.
6. The signature in the cheque is admitted. Ext. P1 agreement is also admitted. As per Ext. P1 agreement Ext.P2 cheque had been issued on 13-2-1996 to discharge a liability. Documentary evidence clearly shows that Ext. P2 cheque was issued by the accused for the due discharge of a legally enforceable debt/liability. There is no merit in the contention, even if true that the accused had no personal liability to the complainant. The only other contention is that the cheque was issued under threat coercion and duress. No evidence is there to prove this contention. The conduct of the appellant after the admitted signing and issue of the cheque does not at all support the theory that it was issued under threat, duress and coercion. I find absolutely no reason to invoke the revisional jurisdiction to interfere with the concurrent findings of the courts below regarding culpability of the accused. The challenge fails.
7. Now coming to the question of sentence, I find that the learned Magistrate had imposed a sentence of simple imprisonment for a period of one year under S. 138 of the Negotiable Instruments Act. No direction for payment of compensation was issued. The revision petitioner contends that the sentence imposed is excessive. The complainant had
