IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 931 of 2001()
1. MICHEL
... Petitioner
Vs
1. JAYADAS
... Respondent
For Petitioner :SMT.I.SHEELA DEVI
For Respondent :SRI.THIRUMALA P.K.MANI
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/08/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 931 OF 2001 A
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Dated this the 16th day of August, 2007
O R D E R
In this Revision filed under Section 397 read with Sec.
401 Cr.P.C. the petitioner who was the accused in C.C.
No.120/1994 on the file of the J.F.C.M.-III, Neyyattinkara
challenges the conviction entered and the sentence passed
against him for an offence punishable under Sec. 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the
Act’).
2. I heard the learned counsel for the Revision Petitioner
and the learned Public Prosecutor.
3. The learned counsel appearing for the Revision
Petitioner re-iterated the contentions in support of the Revision.
The courts below have concurrently held that the cheque in
question was drawn by the revision petitioner in favour of the
complainant on the drawee bank, that the cheque was validly
presented to the bank, that it was dishonoured for reasons which
fall under Section 138 of the Act, that the complainant made a
demand for payment by a notice in time in accordance with clause
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(b) of the proviso to Section 138 of the Act and that the Revision
Petitioner/accused failed to make the payment within 15 days of
receipt of the statutory notice. The learned counsel appearing for
the revision petitioner contended that the cheque in question was
actually entrusted with one Christudas by the revision petitioner
who had arranged visa to the said Christudas for going abroad
and at that time the revision petitioner had entrusted a blank
signed cheque with Christudas, who was really misusing the same
by handing over the same to the complainant, who is none other
than his brother-in-law. The revision petitioner, admittedly, had
received the statutory notice issued by the complainant. If his
case be that the cheque in question was entrusted with
Christudas, when he received statutory notice in this case, he
must have realized that Christudas, with whom he had entrusted
the cheque, had deceived and had misused the same by handing
over the cheque to the complainant. Admittedly, he has not called
upon Christudas to return the cheque nor has he sent even a
notice to Christudas informing the latter that he had misused the
cheque entrusted with him by the revision petitioner. This conduct
of the revision petitioner also speaks volumes to indicate that his
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defence cannot be accepted without a pinch of salt. It was in the
backdrop of this that the trial court, which had the unique
advantage of seeing the witness and assessing their credibility,
was inclined to accept the testimony of the complainant. The
lower appellate court has also confirmed the conviction. So long
as this court is not able to find any infirmity in the appreciation of
evidence by the courts below, this court, sitting in the rarefied
revisional jurisdiction, will be loathe to dislodge the said finding
recorded by the courts below concurrently. Both the courts have
considered and rejected the defence set up by the revision
petitioner while entering the above finding of guilt. The said
finding has been recorded on an appreciation of the oral and
documentary evidence. I do not find any error, illegality or
impropriety in the finding so recorded concurrently by the courts
below. The conviction was thus rightly entered against the
petitioner.
4. What now survives for consideration is the question as
to whether a proper sentence has been imposed on the Revision
Petitioner. I am, however, inclined to modify the sentence
imposed on the revision petitioner provided he complies with the
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condition hereinafter mentioned. Accordingly, if the revision
petitioner pays to the 1st respondent complainant by way of
compensation under section 357(3) Cr.P.C. a sum of Rs.90,000/-
(Rupees ninety thousand only) within four months from today, then
he need to undergo only imprisonment till the rising of the court. If
on the other hand, the revision petitioner commits default in
making the payment as aforesaid, he shall undergo simple
imprisonment for three months by way of default sentence.
Money, if any, paid by the revision petitioner pursuant to the
orders, if any, passed by the lower appellate court shall be
refunded to the revision petitioner.
This Revision is disposed of confirming the conviction but
modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks
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V. RAMKUMAR, J.
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Crl. R.P. No. 931 OF 2001 A
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O R D E R
16th day of August, 2007