Sophy Benny vs Madhu John

Kerala High Court

Sophy Benny vs Madhu John on 21 May, 2024

Author: P.Somarajan

Bench: P.Somarajan

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE P.SOMARAJAN
         TUESDAY, THE 21st DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                      CRL.REV.PET NO. 137 OF 2024
AGAINST THE JUDGMENT DATED 26.11.2021 IN CC NO.8142 OF 2016 OF
JUDICIAL MAGISTRATE OF FIRST CLASS-I, ERNAKULAM AND THE       JUDGMENT
DATED 13.12.2023 IN CRA NO.318 OF 2021 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - VIII, ERNAKULAM
REVISION PETITIONER/ACCUSED:

             SOPHY BENNY, AGED 42 YEARS,
             PARUTHIKATTU VEETIL HOUSE,
             THALAYOLAPARAMBU VAIKOM TALUK,
             KOTTAYAM DISTRICT, PIN - 686141

             BY ADVS. P.I.DAVIS
                      RAJAN VELLOTH
                      SHIJU AUGUSTINE


RESPONDENT/COMPLAINANT:

     1       MADHU JOHN, AGED 50 YEARS,
             PAINUTHARA HOUSE, ELAMKULAM VILLAGE, KANAYANNUR TALUK,
             KADAVANTHRA, PIN - 682017

     2       STATE OF KERALA,
             REPRESENTED BY ITS PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

             R1 BY ADVS. T.R.S.KUMAR
                         DEENA JOSEPH
                         DEEPA R MENON
                         SONA MARIA PAULOSE
                         AMRUTHA PREMJITH

             R2 BY SR.PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN


THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON
21.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.R.P.No.137 of 2024                    2




                                        ORDER

It is against the judgment of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act and the order of sentence, the accused came up pertaining to dishonour of a cheque for Rs.17,03,000/-. The trial court found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and convicted thereunder and sentenced to undergo simple imprisonment for three months and ordered to pay a fine amount of Rs.24,77,524/-. In appeal, the substantive sentence was modified to till rising of court and confirmed the order of sentence of fine. It is against that judgment of conviction and order of sentence, the accused came up mainly on the reason that before the trial court they have preferred an application under Section 311 Cr.P.C. Crl.R.P.No.137 of 2024 3 for recalling PW1 on the sole reason that he was not adequately cross examined. It is a case wherein PW1 had given direct evidence and was cross examined by the accused. The very reason advanced that the accused was not properly or adequately cross examined may not be a sufficient ground to exhaust the remedy under Section 311 Cr.P.C. The very ground raised is hence unsustainable. It is a case wherein the accused did not mount on the box to give any direct evidence. In support of the alleged transaction, yet another document was also produced, an agreement entered into by the parties. Necessarily, when direct evidence was tendered by the complainant, it will discharge the initial burden lies on the complainant to prove the due execution of the cheque. There is no dispute pertaining to the compliance of mandate under Section 138 of the Negotiable Instruments Act. Necessarily, the judgment of conviction deserves no interference.

The sentence now stood modified by the first appellate court is the bare minimum, ie till rising of court and payment of amount covered by the cheque with interest, in default to undergo simple imprisonment for one month. Hence, the criminal revision petition fails and is dismissed.

Sd/-

P.SOMARAJAN JUDGE DMR/-