IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1884 of 2009()
1. P.ANILKUMAR,S/O.PRABHAKARAN NAIR,
... Petitioner
Vs
1. MULAMOOTTIL CONSUMER CREDITS LTD,REG;
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.SUMAN CHAKRAVARTHY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/06/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.1884 of 2009
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Dated this the 17th day of June, 2009
O R D E R
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Public Prosecutor takes notice for respondent No.2. Notice to
respondent No.1 is dispensed with in view of the order I am proposing
to make and which is not prejudicial to it.
2. Petitioner stands convicted for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the Act”) on
a concurrent finding entered by the courts below that he issued the
cheque in discharge of a legally enforceable debt/liability and he did
not pay the amount in spite of dishonour intimation and demand.
Respondent No.1 is a limited company engaged in hire purchase
business. It is alleged that petitioner issued the cheque dated
25.11.2004 for Rs.17,900/- in partial discharge of his liability to it in
connection with a hire purchase transaction and that the cheque was
dishonoured for insufficiency of funds when presented by respondent
No.1. It got dishonour intimation on 30.11.2004. Thereon notice was
given to the petitioner intimating dishonour and demanding payment.
That notice was served on petitioner on 6.12.2004. Petitioner did not
pay the amount. Nor did he reply. Hence the complaint.
3. Power of Attorney holder of respondent No.1 gave
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evidence as P.W.1 on the strength of the authorisation letter. He
stated to the transaction between respondent No.1 and petitioner and
the latter issuing the cheque in partial discharge of his liability.
Exhibit P1 is that cheque. Its dishonour for insufficiency of funds and
issue and service of notice are proved by Exts.P2 to P6. Finding of the
courts below as to the cause of dishonour and issue and service of
notice is not challenged. Challenge is only against execution of the
cheque.
4. According to the petitioner he had given a blank cheque as
security at the time of transaction and that has been misused. P.W.1
however denied that suggestion. Petitioner does not dispute the fact
that he had business transaction with respondent No.1 and owed
money to it. Nor has he denied fact of giving the cheque to
respondent No.1 which according to him was merely as a security.
Petitioner was not successful in his challenge to the evidence of P.W.1
on behalf of respondent No1. Nothing was brought out to disbelieve
the evidence of P.W.1. Petitioner did not reply to the statutory notice
served on him demanding payment of Rs.17,900/- as per the
dishonoured cheque. Courts below have considered the evidence and
circumstances to hold that petitioner issued the cheque for discharge
of legally enforceable debt/liability. Petitioner failed to rebut the
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presumption under Sec.139 of the Act.
5. Learned magistrate sentenced the petitioner to undergo
simple imprisonment for one month. He was directed to pay fine of
Rs.17,900/- and in default of payment to undergo simple
imprisonment for 15 days. Appellate court modified the substantive
sentence as simple imprisonment for 10 days. Direction for payment
of compensation was converted as fine with a default sentence of
simple imprisonment for 10 days. It was also directed that fine if
realised will be given to respondent No.1 as compensation. Learned
counsel for petitioner submitted that substantive sentence imposed on
the petitioner may be modified.
6. In the nature of the offence committed I am satisfied that
simple imprisonment till rising of the court will be sufficient in the ends
of justice. At the same time there is no reason to interfere with the
direction for payment of fine. However in default of payment of fine
petitioner shall undergo simple imprisonment for one month.
7. Learned counsel requested three months’ time to deposit
the fine in the trial court. Counsel submitted that petitioner is unable
to raise the money immediately. Considering the submission of
learned counsel and circumstances of the case, petitioner is granted
two months’ time to deposit the fine in the trial court.
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Resultantly, this revision is allowed in part to the following
extent:
(i) Substantive sentence awarded to
the petitioner is modified as simple
imprisonment till rising of the court.
(ii) Sentence to the extent it concerned
payment of fine of Rs.17,900/-(Rupees
Seventeen thousand and nine hundred only) is
retained. Petitioner is granted two months’
time from this day to pay the fine in the trial
court failing which he shall undergo simple
imprisonment for one month.
(iii) Fine if realised shall be given to
respondent No.1 as compensation under
Section 357(1) of the Code of Criminal
Procedure.
Petitioner shall appear in the trial court on 20.8.2009 to receive
the sentence.
THOMAS P.JOSEPH, JUDGE.
vsv