High Court Kerala High Court

V.Vijayakumar vs Biju Thomas on 3 July, 2009

Kerala High Court
V.Vijayakumar vs Biju Thomas on 3 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2011 of 2009()


1. V.VIJAYAKUMAR,S/O.VISWANATHAN,PROPRIETOR
                      ...  Petitioner

                        Vs



1. BIJU THOMAS,S/O.THOMAS,THAIYIL HOUSE,
                       ...       Respondent

2. STATE OF KERALA,REPRESENTED BY THE

                For Petitioner  :SRI.P.V.BABY

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :03/07/2009

 O R D E R
                     THOMAS P JOSEPH, J
                 ----------------------------------------
                      Crl.R.P.No.2011 of 2009
                                    &
                             2012 of 2009
                  ---------------------------------------
                 Dated this 03rd day of July 2009

                                ORDER

Notice to respondent No.2 is dispensed with in view of the

order I am proposing to make in these revisions which is not

prejudicial to him. Heard public prosecutor who took notice for

respondent No.2.

2. These revisions arise from separate judgments of

learned Additional Sessions Judge, Kottayam in criminal appeal

No.548 of 2007 and 547 of 2007, respectively arising from

common judgment of learned Judicial Magistrate of First Class,

Erattupetta in C. C.Nos.646 of 2005 and 643 of 2005 involving

offence punishable under Sec.138 of Negotiable Instruments Act.

Petitioner faced trial in the trial court on complaints preferred by

respondent No.1 on the allegation that petitioner owed money to

him and for repayment of the amount issued the disputed cheques

which were dishonoured for insufficiency of funds. In spite of

Crl.R.P.No.2011 2

serving statutory notice to the petitioner intimating dishonour and

demanding payment of the amount, petitioner did not pay the

amount. Hence the complaints. Respondent No.1 gave evidence

as PW1 and proved Exts.P1 to P16. Petitioner gave evidence as

DW1 and examined a witness as DW2. Ext.D1 was marked on his

side. Courts below after consideration of the evidence found in

favour of due execution of the cheques. It was also found that the

cheques were dishonoured for insufficiency of funds and that

inspite of service of statutory notice petitioner failed to pay the

amount. Accordingly he was convicted as stated above.

3. So far as cause of dishonour and issue and service of

statutory notice are concerned there is no challenge before me and

the same are proved by the relevant dishonour memos and copy of

notice, postal receipts and acknowledgment cards signed by

petitioner.

4. So far as execution of the cheques are concerned,

respondent No.1 gave evidence as PW1. In C.C.No.646 of 2005,

Crl.R.P.No.2011 3

the amount involved is Rs.125000/- and in C.C.No.643 of 2005 the

amount covered by the cheque is Rs.26865/-. According to

respondent No.1, petitioner owed the said amounts to him and for

repayment issued the cheques. He stated that petitioner purchased

coconut oil from him and for the amount due, issued the cheques.

Contention raised by the petitioner is that as per agreement

between him and respondent No.1, latter used to supply coconut oil

at his business place and on such occasions, he used to give

cheques for the amount due. Once there was a complaint that

coconut oil supplied by respondent No.1 was adulterated.

Respondent No.1 thought that the scandal was spread by petitioner

and on account of that enmity misused the cheques already given.

He claimed that he did not owe any amount to respondent No.1.

He produced Ext.D1, statement said to have been given by

respondent No.1 regarding the transaction and the amount due.

When that statement was put to respondent No.1, he denied giving

any such statement. Learned magistrate observed that Ext.D1 does

Crl.R.P.No.2011 4

not contain signature of the person who issued it and that Ext.D1

did not bind respondent No.1. DW2 is a witness examined by

petitioner. He denied that he is ‘Sunny’ referred to Ext.D1. His

evidence is not in any way helpful to respondent No.1. What

remain is only evidence of petitioner as DW1.

5. So far as evidence of DW1 is concerned, he was not

able to substantiate his case. He did not reply to the statutory

notice served on him claiming the respective amounts. That would

have been the first occasion for him to set up his defence. It is

admitted by petitioner that he had business transaction with

respondent No.1 and used to give cheques for amounts due from

him. According to respondent No.1, the amount covered by the

cheques are due to him. Petitioner does not dispute that the

cheques are signed and drawn by him on the account maintained

by him. He has also not disputed that he had given the cheques

(Ext.P7 to P10) to respondent No.1. Courts below assessed the

evidence to let in by both sides and held that petitioner issued the

Crl.R.P.No.2011 5

cheques (Ext.P1, P7 to P10) in favour of respondent No.1 for

discharge of liability. There is little reason to interfere with the

concurrent finding of the fact in revision.

6. In C.C.No.646 of 2005 learned magistrate sentenced the

petitioner to undergo simple imprisonment for four months and

directed him to pay by way of compensation Rs.125000/- to

respondent No.1. There was default sentence of imprisonment for

four months. Learned Additional Sessions Judge modified the

sentence as simple imprisonment till rising of the court, fine of

Rs.125000/- and default sentence of imprisonment for two months.

In C.C.No.643 of 2005, learned magistrate sentenced the petitioner

to undergo simple imprisonment for one month. There was also

direction to pay compensation of Rs.26865/- and in default

payment to undergo simple imprisonment for one month. In appeal

sentence was modified as simple imprisonment till rising of the

court, fine of Rs.26865/- and default sentence of imprisonment for

one month.

Crl.R.P.No.2011 6

7. Learned counsel requested that the fine awarded may be

converted as compensation payable to respondent No.1 directly.

He also requested that petitioner may be granted four months’ time

for payment of compensation since petitioner is facing financially

difficult situation and is unable to raise the amount immediately.

8. Having regard to the nature of the offence and object of

legislation I am satisfied that substantive sentence as modified by

the appellate court and direction for payment of compensation is

sufficient in the ends of justice. Considering the circumstances

stated by the learned counsel petitioner is granted four months’

time from today to deposit compensation.

Resultantly these revisions are allowed in part to the

following extent:

(a) Crl.R.P.No.2011 of 2009

(i) while retaining the substantive sentence as modified by

learned Additional Sessions Judge, sentence of fine is

set aside. Instead, petitioner is directed to deposit in the

Crl.R.P.No.2011 7

trial court for payment to respondent No.1 within four

months from this day Rs.125000/- (Rupees One Lakh

Twenty Five Thousand Only) as compensation failing

which he shall undergo simple imprisonment for four

months.

(b) Crl.R.P.No.2012 of 2009

(ii) while retaining the substantive sentence as modified by

the learned Additional Sessions Judge, sentence of fine

is set aside. Instead, petitioner is directed to deposit in

the trial court for payment to respondent No.1

Rs.26865/- (Rupees Twenty Six Thousand Eight

Hundred and Sixty Five Only) by way of compensation

within four months from this day failing which he shall

undergo simple imprisonment for two months.

(c) It is made clear that it will be sufficient compliance with the

directions above made for deposit of compensation if

petitioner paid the compensation to respondent No.1 through

Crl.R.P.No.2011 8

his counsel in the trial court and respondent No.1 filed

statement in the trial court through his counsel

acknowledging receipt of compensation within the aforesaid

time.

(d) It is made clear that in case of default in paying compensation

as aforesaid, petitioner has to undergo the default sentence as

above stated which will run consecutively.

Petitioner shall appear in the trial court on 06-10-09 to

receive the sentence.

THOMAS P JOSEPH, JUDGE
Sbna/