High Court Kerala High Court

A.P.Aboobacker vs T.V.Chandran on 28 May, 2009

Kerala High Court
A.P.Aboobacker vs T.V.Chandran on 28 May, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1682 of 2009()



1. A.P.ABOOBACKER
                      ...  Petitioner

                        Vs

1. T.V.CHANDRAN
                       ...       Respondent

                For Petitioner  :SRI.KODOTH SREEDHARAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :28/05/2009

 O R D E R
                      THOMAS P.JOSEPH, J.
                  -----------------------------------
                     Crl.R.P.No. 1682 of 2009
                   ---------------------------------
               Dated this the 28th day of May, 2009

                              O R D E R

Notice to 1st respondent is dispensed with in view of the

order I am proposing to pass in the revision petition. Learned

Public Prosecutor takes notice for 2nd respondent.

According to 1st respondent who is the proprietor of

M/s.Deepa Gold Palace, Kasaragod, petitioner owed Rs.1 Lakh to

him and for the discharge of that liability issued Ext.P1 cheque

dated 20.4.2006, the cheque was dishonoured for insufficiency of

funds as proved by Exts.P2 and P3 and in spite of statutory

notice served on the petitioner (proved through Exts.P5 and P6),

he did not pay the amount. 1st respondent gave evidence as PW1

and testified to his case. The contention raised by the petitioner

is that he had not issued any cheque to 1st respondent and no

amount is due from him to the 1st respondent. Courts below

accepted the evidence of 1st respondent and found in favour of

due execution of the cheque. That finding is challenged in this

revision. Learned counsel for the petitioner contends that there

Crl.R.P.No.1682 of 2009

2

is no sufficient evidence for due execution of the cheque.

3. It is not disputed and proved as well that Ext.P1

contained the signature of the petitioner and that the cheque was

drawn on his account. In that situation, it was for the petitioner

to explain the circumstances under which according to him, the

signed cheque leaf happened to be in the custody of 1st

respondent. Apart from some suggestion put to the 1st

respondent in the course of evidence, there is no material on

record proving or probabilising those suggestions. Petitioner also

failed to reply to the notice served on him. These circumstances

have been taken into account by the courts below to hold in

favour of due execution of the cheque. I find nothing illegal,

irregular or improper in the finding entered by the courts below

requiring interference in this revision.

4. Learned Magistrate sentenced the petitioner to

undergo simple imprisonment for three months and directed him

to pay Rs.1 Lakh as compensation. In appeal the substantive

sentence was modified as simple imprisonment for 10 days.

Direction for payment of compensation was confirmed.

Crl.R.P.No.1682 of 2009

3

5. So far as the substantive sentence is concerned, I am

satisfied that simple imprisonment till rising of the court is

sufficient in the ends of justice having regard to the nature of the

offence involved and object of legislation. I do not find any

reason to interfere with the direction for payment of

compensation. Counsel requests that petitioner may be granted

four months time to deposit compensation. Considering the

amount involved and the circumstances pleaded by the counsel, I

am inclined to grant three months time to deposit compensation.

6. In the result, this revision is allowed in part in the

following lines.

1) Substantive sentence awarded to the

petitioner is modified to simple imprisonment till rising

of the court.

2) Petitioner is granted three months time to

deposit compensation in the trial court as ordered by

the court below.

3) It is made clear that it will be sufficient

compliance of condition No.2, if petitioner paid the

compensation to 1st respondent through his counsel in

the trial court and 1st respondent files a statement in

that court through his counsel acknowledging receipt of

Crl.R.P.No.1682 of 2009

4

the amount within the said period of three months.

4) Petitioner shall appear before the court

below on 7.9.2009 to receive the sentence.

7. It is submitted by the learned counsel that the

petitioner has already been arrested today by the Kasaragod

Police pursuant to the warrant issued by the trial court, in view of

the dismissal of the appeal. I have by this order modified the

sentence granting three months time to deposit compensation.

Hence the petitioner has to be released from custody.

The Registry is directed to issue direction to the Judicial

First Class Magistrate-II (Additional Munsiff) Kasaragod to release

the petitioner.

THOMAS P.JOSEPH,
JUDGE.

bkn/-