IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2708 of 2009()
1. A.DHANAPALAN, S/O.ACHUTHAN VAIDYAN,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. REGUNATHA PILLAI, DEEPABHAVANIL,
For Petitioner :SRI.V.G.ARUN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2708 of 2009
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Dated this the 21st day of August, 2009.
ORDER
Public Prosecutor takes notice for respondent No.1. Notice to respondent
No.2 is dispensed with in view of the order I am proposing to pass in the revision
which is not prejudicial to him.
2. Petitioner faced trial in the court of learned Judicial First Class
Magistrate-II, Kottarakkara in C.C.No.737 of 2003 for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the Act”). According
to respondent No.2, petitioner borrowed Rs.3,50,000/- from him on 22.5.2002
and on his demanding repayment, petitioner issued Ext.P1, cheque dated
3.5.2003 on 3.4.2003. That cheque was dishonoured for insufficiency of funds
as proved by Exts.P2 to P4. Service of statutory notice on petitioner is proved
by Exts.P5 to P7. Respondent No.2 gave evidence as PW1 and claimed that
petitioner borrowed Rs.3,50,000/- from him and for repayment of that amount
issued the cheque. Contention of petitioner is that son of respondent No.2 was
an employee of Headload Workers Welfare Fund Society of which petitioner
was the president and using that occasion son of respondent No.2 stealthily
collected his cheque. Courts below did not believe that explanation of petitioner
and found him guilty on the finding that he issued the cheque for the discharge of
a legally enforceable debt/liability.
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3. It is not disputed that Ext.P1, cheque contained signature of
petitioner and is drawn on the account maintained by the petitioner. His
contention that the cheque was stolen by son of respondent No.2 is not proved
or probabilised. Petitioner has not replied to the notice served on him. If the
cheque were stolen as claimed by petitioner and based on that a fairly big
amount was claimed from him as per demand notice petitioner would have
replied to that notice. It is only in the defence that such a case is set up by
petitioner. Courts below in these circumstances were not inclined to accept the
version of petitioner. Courts below found no reason to disbelieve respondent
No.2. I find no reason to differ from the concurrent finding of fact entered by
the courts below in the absence of any illegality or irregularity affecting the
finding.
4. Learned magistrate sentenced petitioner to undergo simple
imprisonment for three months and payment of compensation of Rs.3,50,000/-.
A default sentence of imprisonment for one month was also provided. Learned
Additional Sessions Judge modified sentence as fine of Rs.3,50,000/- and in
default of payment to undergo simple imprisonment for three months.
Appellate court directed that fine if realized will be paid to respondent No.2 as
compensation. Having regard to the nature of offence and the amount involved I
find no reason to interfere with the sentence as modified by the appellate court
or the default sentence at the instance of petitioner.
5. Learned counsel requested that petitioner may be granted six
months’ time to deposit fine in the trial court. Learned counsel states that
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petitioner is not able to raise the amount immediately due to financial
difficulties. Having regard to the facts and circumstances and the amount
involved, petitioner is granted time till 20.1.2010 to deposit fine in the trial court
as ordered by the appellate court.
Resultantly this revision petition fails. It is dismissed. Petitioner is
granted time till 20.1.2010 to deposit fine in the trial court as ordered by the
appellate court. In case fine is not deposited within the time aforesaid, petitioner
shall appear in the trial court on 22.1.2010 to receive the default sentence. Until
then execution of warrant if any against the petitioner will stand in abeyance.
THOMAS P.JOSEPH,
Judge.
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