IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1154 of 2001()
1. PAUL RAJ
... Petitioner
Vs
1. K. ANIL KUMAR
... Respondent
For Petitioner :SRI.P.RAVINDRA BABU
For Respondent :SRI.S.SANTHOSH KUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/12/2008
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1154 of 2001
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Dated this the 11th day of December, 2008.
ORDER
Revision petitioner was convicted for offence punishable under Section
138 of the Negotiable Instruments Act (for short, ‘the Act’) and sentenced to
undergo simple imprisonment for one year and payment of fine of Rs.80,000/-
as per judgment dated 27.8.1997. Aggrieved, revision petitioner filed appeal.
Learned Sessions Judge confirmed the conviction but set aside the sentence as
fine imposed was beyond the power of Judicial First Class Magistrate and
remanded the case to the court of learned magistrate to pass proper sentence.
Revision petitioner challenges the concurrent finding entered by the courts below
regarding his guilt.
2. Heard both sides.
3. Case of the first respondent is that revision petitioner borrowed
Rs.50,000/- from him and issued cheque dated 25.9.1994 for the discharge of
that debt. Ext.P1 is the cheque. Its dishonour for insufficiency of funds is proved
by Exts.P2 and P7 and evidence of PW2. Issue of notice intimating dishonour
and demanding payment of the amount and its service on revision petitioner are
proved by Exts.P3 to P5. First respondent gave evidence as PW1 and testified
to his case. Case of the revision petitioner is that he used to take garments
from the shop of first respondent for sale on credit basis and issued signed blank
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cheque as security towards cost of the garments. Balance amount due to the
first respondent was only Rs.233/- but first respondent misused the cheque and
presented it for encashment. It is also the case of revision petitioner that even
before the first respondent issued notice intimating dishonour and demanding
payment of cheque amount, he had issued Ext.P6 notice on 29.10.1994
informing the first respondent about the whole transaction, intimating the
balance amount due from him and requesting the first respondent not to fill up
the cheque and present the same. Revision petitioner proved Exts.D1 to D4.
Exts.D1 series and D2 series, according to the revision petitioner, are bills while
according to the first respondent, the same are estimates as per which revision
petitioner purchased garments from the shop of the first respondent. Ext.D3,
according to the revision petitioner is the visiting card of Sudheesh, said to be a
representative of first respondent and through whom certain payments were
allegedly made. Ext.D4 is the copy of notice issued by the revision petitioner to
the first respondent. Learned counsel for revision petitioner contended that first
respondent has not proved due execution of the cheque and at any rate,
presumption under Section 138 of the Act is rebutted. Counsel for first
respondent supported the concurrent finding entered by the courts below.
4. It is not very much in dispute that Ext.P1 is drawn on the account
maintained by the revision petitioner. First respondent has not disputed that
revision petitioner had transactions with him in the matter of sale of garments
on credit basis or otherwise. He did not also dispute Exts.D1 and D2
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series, bills or estimates as the case may be. Ext.D1 series dated 20.12.1993
are for Rs.17,720/-. First respondent admitted that revision petitioner repaid
Rs.1,000/- towards that liability and that is endorsed on the back of Ext.D1
series. Ext.D2 series are dated 23.1.1994 for Rs.14,413/-. First respondent
admitted that revision petitioner paid Rs.6,000/- towards that liability and that fact
was endorsed on the back of Ext.D2 series. He also admitted that it was when
the liability as per the credit transaction was not fully discharged that he lent
Rs.50,000/- to the revision petitioner. According to the learned counsel for
revision petitioner, it is highly improbable that the first respondent would do so
when there was outstandings as per the credit transactions. That, however
depended on the relationship between the parties. As per the version of the
revision petitioner, he had regular credit transactions with the first respondent,
purchasing garments from the shop of the first respondent on credit basis or
otherwise. It is not shown that Exts.D1 and D2 series are part of the transaction
which in any way culminated in Ext.P1.
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5. So far as Ext.D3 is concerned, that is a printed visiting card
allegedly issued by the first respondent and in the column concerning name of
the representative, name of one Sudheesh is written with ink. First respondent
when examined as PW1 denied that Sudheesh is his representative. There is no
evidence to the contra. Revision petitioner did not take any step to examine
Sudheesh or summon any other document which would show that Sudheesh is
a representative of the first respondent. It is also not shown that revision
petitioner had made payments to said Sudheesh.
6. It is true that going by the date shown in the postal seal affixed on
Ext.D4, that notice was sent to the first respondent on 29.10.1994 stating about
the case pleaded by the revision petitioner but it is also to be noted that the first
respondent had presented the cheque on 29.10.1995 and it was dishonoured at
that time. Possibility of revision petitioner being aware of the dishonour on
29.10.1994 and sending Ext.D4 notice in defence cannot be ruled out. When it
is shown that the cheque is drawn on the account maintained by the revision
petitioner and it contained his signature, it is for him to prove or atleast
probabilise the circumstances under which the signed blank cheque happened
to be in the custody of the first respondent. Mere suggestions in that regard or
proof of some documents which do not throw light on the issue and which did not
affect the case pleaded by the first respondent is not sufficient. In the
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circumstances, I do not find any illegality, irregularity or impropriety in the finding
of the courts below that petitioner is guilty under Section 138 of the Act.
Challenge to the conviction therefore, has to fail.
7. So far as sentence awarded by the trial court is concerned, learned
Sessions Judge found that the sentence of fine is not legal, set aside the same
and remanded the matter for awarding proper sentence. There is no reason to
interfere with that part of the judgment also.
Resultantly, revision petition fails and it is dismissed. Parties are directed to
appear in the trial court on 31.1.2009.
Crl.M.P.No.5454 of 2001 will stand dismissed.
THOMAS P.JOSEPH,
JUDGE.
cks
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Thomas P.Joseph, J.
Crl.R.P.No.1154 of 2001
ORDER
11th December, 2008