IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1590 of 2009()
1. ABUBACKER AHAMMED,
... Petitioner
Vs
1. ABDULRAHIMAN K.M., AGED 47 YEARS,
... Respondent
2. STATE, REP. BY THE PUBLIC PROSECUTOR,
For Petitioner :SRI.K.P.HARISH
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/05/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1590 of 2009
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Dated this the 22nd day of May, 2009.
ORDER
Public Prosecutor takes notice for respondent No.2. Notice to
respondent No.1 is dispensed with in view of the order I am proposing to make.
2. Heard counsel for petitioner and the Public Prosecutor.
3. Judgment of learned Sessions Judge, Kasaragod in Crl.Appeal
No.250 of 2008 confirming conviction of the petitioner for offence punishable
under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but
modifying the substantive sentence while retaining compensation awarded by
the trial court is under challenge in this revision.
4. Case of respondent No.1 is that for discharge of debt to the tune of
Rs.3.5 lakhs due to him petitioner issued Ext.P1, cheque dated 16.5.2007 which
was dishonoured for insufficiency of funds and inspite of dishonour intimation
and demand for payment, petitioner did not pay the amount. Respondent No.1
gave evidence as PW1 and proved Exts.P1 to P7. Dishonour of the cheque for
the said reason is proved by Exts.P2 and P3. According to respondent No.1, he
issued notice to petitioner on 17.9.2007, intimation of the notice was given by
the postman to the petitioner but he refused to claim it. When questioned under
Section 313 of the Code of Criminal Procedure petitioner contended that
respondent No.1 had invested money in Dibba Enterprises of which himself and
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one Aboobacker Siddique were partners. Later business failed and the concern
was closed. Respondent No.1 and his men came to his shop and obtained a
signed blank cheque and signed blank stamp paper under threat. Petitioner
gave evidence as DW1 and stated in that line. He examined DW2 who claimed
to have mediated the dispute between petitioner and respondent No.1. Courts
below found against the contention raised by the petitioner and held that he
issued the cheque for discharge of debt due to respondent No.1. Learned
counsel for petitioner contends that finding entered by the courts below is
erroneous and is without considering the evidence given by DWs 1 and 2.
5. I have gone through the copy of the depositions of PW1 and DWs
1 and 2 made available by counsel for petitioner. PW1 has stated in tune with
his averments in the complaint and denied the suggestion made by the
petitioner. So far as DW2 is concerned, he has no direct information about the
alleged threat and coercion and claimed to have learnt about that when he tried
to mediate the dispute. Courts below found that there is no evidence to prove
the allegation of threat and coercion used in obtaining the cheque. On the other
hand Ext.P6, agreement executed by petitioner in favour of respondent No.1
refers to the issue of Ext.P1, cheque. It is pertinent to note that inspite of
respondent No.1 and his men allegedly obtaining a signed blank cheque and
signed blank stamp paper under threat and coercion from the petitioner, he did
not prefer any complaint. It is admitted that Exts.P1 and P6, cheque and
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agreement contained the signature of the petitioner. Though proof or admission
of signature does not amount to proof or admission of execution of cheque or
agreement, that went a long way in proving its due execution. Normally it is
difficult to think that a person would leave signed blank cheque and signed blank
stamp paper with another and inspite of the person concerned allegedly
obtaining the same under threat and coercion, he would desist from initiating
action on that. Not even a notice was issued to respondent No.1 alleging so.
Courts below rightly found that petitioner failed to rebut presumption under
Section 139 of the Act.
6. On the contention regarding notice is concerned, it is seen from
Ext.P5 that intimation was served on the petitioner but he did not receive it.
Normally when a registered notice is sent in correct address, that should reach
the addressee. Endorsement given in Ext.P5 is not shown to be incorrect.
There is deemed service of notice on the petitioner. There is no reason to
interfere with the allegation of petitioner regarding service of notice.
7. Though the trial court sentenced the petitioner to undergo simple
imprisonment for three months and to pay Rs.3.5 lakhs as compensation,
appellate court modified the substantive sentence to simple imprisonment for ten
(10) days while retaining the order for payment of compensation. In the nature
of offence committed and object of legislation there is little reason to interfere
with the direction for payment of compensation. Learned Sessions Judge
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modified the substantive sentence awarded by learned magistrate to simple
imprisonment for ten (10) days while retaining the direction for payment of
compensation. In the facts and circumstances of the case I am inclined to
think that simple imprisonment till rising of the court and payment of
compensation as awarded by the courts below is sufficient punishment in the
ends of justice.
8. At this stage counsel for petitioner requested for five months’
time to deposit the compensation. In the facts and circumstances of the case, I
am inclined to grant three months’ time from this day to deposit the
compensation.
Resultantly, this revision is allowed in part and the sentence is
modified as follows:
i. Substantive sentenced awarded to the petitioner is modified
as simple imprisonment till rising of the court.
ii. Petitioner is granted three months’ time from this day to
deposit the compensation in the trial court. In case of failure he shall undergo
imprisonment as ordered by the courts below.
iii. It is made clear that it will be sufficient compliance with
direction No.ii if petitioner paid the 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 within the aforesaid time acknowledging the receipt of
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the amount.
iv. Petitioner shall surrender in the trial court on 25.8.2009 to
receive the sentence.
Crl.M.A.No.4811 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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