Sophy Benny vs Madhu John
2024 Latest Caselaw 12737 Ker

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.

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/-