IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1559 of 2010()
1. SURENDRAN, AGED 43 YEARS,
... Petitioner
Vs
1. ASHIQUE EXPORTS PVT.LTD.,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.LITTO VARGHESE PALATHINKAL
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :19/05/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P. No. 1559 & 1566 OF 2010
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Dated 19th Day of May, 2010
ORDER
These two Crl.Revision Petitions arose out of a common
judgment dated 2.3.2009 of the Judicial First Class Magistrate
Court-I, Kozhikode in S.T.No.1934 of 2006 and 1993/2006. As the
parties are same in both these Crl.Revision Petitions, and the
contentions are identical, the same are heard together and being
disposed of by this common order.
2. The first respondent in both these revisions is the
complainant, which is a private limited company engaged in the
business of Tiles. The revision petitioner/accused is the
Proprietor of Mangat Agencies who manages the business of
Mangat Tile Depot. According to the complainant, the accused
purchased goods worth for Rs.12 lakhs from the complainant and
issued post dated cheques which are marked as Exts.P3, P4,
P13 and P14. Exts.P3 and P4 are for an amount of Rs.50,000/-
each and Exts.P13 and 14 are for an amount of Rs.one lakh
each. According to the complainant, when the above cheques
were presented for encashment, Exts.P3 and P4 were
dishonoured due to insufficiency of funds in the account
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maintained by the accused. Exts.P13 and 14 were dishnoured
as the account was closed by the accused. Thus, the complainant
on receipt of the dishonour memo, caused to issue lawyer notice
informing the accused regarding the dishonour of cheques and
demanding him to pay the amount covered by the cheques. As
there was no payment, the complainant approached the trial court
after complying with the statutory formalities whereupon
S.T.Nos.1934/2006 and 1993/2006 were instituted. During the
course of the trial, from the side of the complainant, PWs 1 and 2
were examined and Exts.P1 to P22 were marked. From the side
of the defence, DW1 was examined and Ext.D1 was marked. On
the basis of the above evidence and materials and after considering
the rival pleadings, the trial court has found that the complainant
has established his case and accordingly found that the revision
petitioner-accused is guilty of the offence charged against him.
Consequently, in both the cases, the trial court imposed only
sentence of imprisonment till the rising of the court and in
S.T.No.1934/2006, he was directed to pay a sum of Rs.one lakh to
the complainant as compensation under section 357(3) Cr.P.C and
in default, to undergo simple imprisonment for two months.
Whereas in S.T.No.1993/2006, he was directed to undergo simple
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imprisonment till rising of the court and to pay a sum of Rs.2 lakhs
to the complainant as compensation under section 357(3) Cr.P.C
and in default to undergo simple imprisonment for three months.
The above conviction and sentences and order of compensation
though challenged by the revision petitioner-accused by preferring
Crl.A. Nos.200 and 201 of 2009, both the appeals were dismissed
by the lower appellate court by a common judgment dated
30.1.2010 confirming the conviction and sentence imposed against
the revision petitioner by the trial court. It is the above judgments,
conviction and sentence are challenged in these Crl.R.Ps.
3. I have heard the learned counsel appearing for the
revision petitioner in both the cases.
4. It is submitted that the complainant has not produced
acceptable and admissible evidence regarding the transaction. The
amount shown in the cheques in question are exorbitant without
considering the amount already paid by the revision petitioner to
the complainant. The learned counsel submitted that both the
courts below failed to consider the above aspect. It is further
submitted that the revision petitioner-accused could not produce
evidence regarding the payments made by him to the
complainant and therefore, an opportunity may be given to the
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revision petitioner to substantiate his claim regarding the repayment
of the amount to the complainant.
5. I have carefully gone through the judgments of the trial
court as well as the lower appellate court. The trial court as well as
the lower appellate court has positively held that the complainant
has established its case beyond reasonable doubt by adducing oral
evidence as well as contemporary documentary evidence. In this
juncture it is to be noted that the revision petitioner/accused had
filed a statement by which he had admitted the transaction. The
only contention raised in the said statement is to the effect that the
revision petitioner/accused is not liable to pay that much
amount shown in the cheques in question since he had already
paid the amount. When the revision petitioner was examined as
DW1, he had admitted the transaction and also admitted the
signature that contained in the cheques in question and the
execution and issuance of the same. When the revision petitioner-
accused admitted the transaction, and the execution and issuance
of the cheques, it is heavily upon him to substantiate his case
regarding the repayment made by him towards the liability arose
out of the transaction admitted by him. In this juncture it is relevant
to note that before filing the complaint, the complainant had
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caused to send lawyer notice to the accused demanding the
cheque amount. So, the accused was fully aware of the contention
of the complainant and if he had a case to the effect that no
liability was existing or he had cleared off the entire debt, he
should have adduced evidence to that effect. The trial court has
specifically found that the accused has not given the details of the
alleged payments made by him. The trial court has also found that
at the same time, DW1 has deposed that he is having accounts to
prove his liability towards the complainant. But those accounts
were also not produced. Without making any attempt to produce
any documentary evidence or any acceptable evidence, the
attempt made by the accused was to the effect that he had cited
employees of the complainant as witnesses and no documents
were produced. Therefore, the finding arrived on by the courts
below that the accused has failed to substantiate his defence
regarding the repayment of the liability, is absolutely correct.
Therefore, I find no reason to interfere with the concurrent finding of
the trial court as well as the lower appellate court. Accordingly,
the above Crl.R.Ps are dismissed.
6. The learned counsel for the revision petitioner submitted
that a breathing time may be granted to pay the amount of
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compensation and to receive the sentence. According to me, the
said submission can be considered in favour of the revision
petitioner. But it is also relevant to note that the cheques are
pertained to the year 2006 and four years are over. It is also
relevant to note that the substantive sentence awarded against the
revision petitioner is only imprisonment till the rising of the court.
Having regard to the above facts and circumstances, these
Crl.Revision Petitions are dismissed directing the revision
petitioner to appear before the trial court on or before 19.6.2010 to
receive the sentence in both the cases which will run
concurrently, and to make the payment of compensation awarded
by the trial court and confirmed by the lower appellate court. If
there is any failure on the part of the revision petitioner in appearing
before the trial court as directed above, the trial court is free to
take coercive step to procure the presence of revision petitioner
and to execute the sentence and to realise the compensation
amount.
V.K.MOHANAN,
JUDGE
kvm/-
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kvm/-
V.K.MOHANAN, J.
O.P.No.
JUDGMENT
CRL.R.P.1559/10 & 1566/10
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Dated:..