UNNIKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the accused in Summary Trial Case, S.T.No. 4018/2010 on the file of the Judicial First Class Magistrate's Court-I, Ottapalam, for offence punishable under Section 138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 2nd respondent (complainant) herein. The trial court as per the impugned judgment dated 18.11.2015 had convicted the petitioner and had sentenced him to undergo simple imprisonment for 3 months and to pay fine of Rs. 2,88,000/- under Section 138 of the Negotiable Instruments Act, on payment of which, the same was ordered to be paid as compensation to the complainant, with the default sentence clause of 2 months' simple imprisonment. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.315/2015 before the appellate Sessions Court concerned (Court of Sessions Judge, Palakkad Division). The appellate court as per the impugned appellate judgment dated 25.11.2016 had upheld the conviction, but modified the substantive sentence to imprisonment till rising of the court and to pay fine of Rs. 2,77,200/-, with a default sentence clause of two months' simple imprisonment. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Section 397 read with Section 401 of the Cr.P.C.

(2.) Heard Sri.S.Rajeev, learned counsel appearing for the revision petitioner (accused), Sri.Rajesh Sivaramankutty, learned counsel appearing for R-2 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.

(3.) The complainant and the accused in this case are brothers. The case of the complainant is that the accused had borrowed an amount of Rs. 2,20,000/- from him, which was promised to be repaid along with interest thereon @ 12% p.a thereon and that, in discharge of the said liability, the accused had issued Ext.P-1 cheque dated 2.8.2010 from his account for amount of Rs. 2,77,200/- (which reflects the principal amount as well as interest thereon) and that the cheque when presented, resulted in dishonour as per Ext.P-2 bank memo dated 6.8.2010. That thereupon the complaint had issued Ext.P-3 statutory demand notice dated 18.10.2010 under Section 138 proviso (b) of the Negotiable Instruments Act calling upon the petitioner to pay of the amounts covered by the cheque within a period of 15 days from the date of receipt of the notice. The said notice sent by registered post was returned with the endorsement, "unclaimed" and that since the amount was not paid within the requisite time, the complainant, after complying with procedural formalities had filed the instant complaint, which led to the conduct of the trial.