IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3751 of 2008()
1. MUSTAPHA @ MUTHU, AGED ABOUT 40 YEARS,
... Petitioner
Vs
1. SHAHUL HAMEED, AGED 41 YEARS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.V.JOHN SEBASTIAN RALPH
For Respondent :SMT.T.D.RAJALAKSHMI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.3751 of 2008
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Dated this the 20th day of August, 2009
O R D E R
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Heard learned counsel for petitioner and Public Prosecutor.
2. This revision is in challenge of judgment of learned
Additional Sessions Judge (Adhoc-III), Palakkad in Crl. Appeal No. 192
of 2005 confirming conviction but modifying sentence of petitioner for
offence punishable under Section 138 of the Negotiable Instruments
Act. According to respondent No.1, petitioner borrowed Rs.3,00,000/-
from him on 15.7.2002 undertaking to repay the same within two
months and on his demanding repayment after the said period,
petitioner issued Ext.P1, cheque dated 24.9.2002. That cheque was
dishonoured for insufficiency of funds as seen from Ext.P2. Service of
notice on petitioner is proved by Exts.P3 to P5. Respondent No.1 gave
evidence as P.W.1 and testified to his case. Though when questioned
under Section 313 of the Code of Criminal Procedure petitioner has no
specific case as to the transaction and alleged execution of the
cheque it was suggested to respondent No.1 when the latter was in the
box that petitioner had borrowed Rs.25,000/- and as security for that
amount respondent No.1 obtained three signed blank cheques and one
of those cheque has been misused. Respondent No.1 denied that
CRL.R.P. No.3751 of 2008
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suggestion. Courts below found that due execution of the cheque is
proved. It is contended in this revision that due execution of the
cheque is not proved.
3. It is not disputed that petitioner had money transaction
with respondent No.1 and it was in that transaction that cheque in
question was given to respondent No.1 Though petitioner has a
contention that amount borrowed is only Rs.25,000/-, respondent No.1
obtained three signed blank cheques and one of those cheques has
been misused what is available is only the suggestion put to
respondent No.1 which he denied. Petitioner did not reply to the
notice in spite of the fact that a fairly big amount was claimed from
him as per the cheque in question. Courts below found that there is no
reason to disbelieve the evidence of respondent No1. In the
circumstances there is no reason to interfere with the conviction of
petitioner.
4. Learned magistrate sentenced petitioner to undergo simple
imprisonment for nine months and directed payment of Rs.3,15,000/-
by way of compensation to respondent No.1 under Sec.357(3) of the
Code. A default sentence of imprisonment for three months was also
provided. Appellate court while modifying the substantive sentence
as simple imprisonment till rising of the court directed payment of
compensation of Rs.3,50,000/- and modified default sentence as six
CRL.R.P. No.3751 of 2008
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months. It is contended by learned counsel that there was no
justification in the appellate court enhancing the compensation
payable to Rs.3,50,000/-. It is also contended that default sentence
(six months) is illegal since at the time the offence was committed,
maximum imprisonment that could be awarded was one year and
hence default sentence cannot be more than one fourth of such
punishment. Learned counsel requested that compensation payable
may be modified. It is also requested that considering the financial
difficulties petitioner may be granted six months’ time to pay
compensation and that petitioner may be permitted to pay the
compensation directly to respondent No.1
5. I have heard counsel for respondent No.1 on the
submission of counsel for petitioner. Learned magistrate after
considering the amount covered by the cheque and all other relevant
circumstances fixed Rs.3,15,000/- as the compensation payable. On
considering the submission of learned counsel and all relevant
circumstances I am satisfied that compensation payable can be fixed
as Rs.3,15,000/- as ordered by learned magistrate. I am inclined to
grant time till 21.12.2009 to deposit the compensation.
Resultantly this revision petition is allowed in part to the
following extent:
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(i) While retaining the substantive
sentence as modified by the appellate court,
amount of compensation payable is modified
as Rs.3,15,000/- (Rupees Three lakhs and
fifteen thousand only).
(ii) Petitioner is granted time till
21.12.2009 to deposit compensation in the trial
court failing which he shall undergo simple
imprisonment for three month.
(iii) It is made clear that it shall be
sufficient compliance with the direction for
deposit of compensation if petitioner paid
compensation to respondent No.1 through his
counsel in the trial court and respondent No.1
filed a statement in the trial court through his
counsel acknowledging receipt of
compensation within the said period.
Petitioner shall appear in the trial court on 23.12.2009 to receive
the sentence. Until then execution of warrant if any, against
petitioner will remain in abeyance.
THOMAS P.JOSEPH, JUDGE.
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