High Court Kerala High Court

M.M.Abdul Shukkur vs Rajesh Kumar Mehtha on 24 October, 2008

Kerala High Court
M.M.Abdul Shukkur vs Rajesh Kumar Mehtha on 24 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 512 of 2007(E)



1. M.M.ABDUL SHUKKUR
                      ...  Petitioner

                        Vs

1. RAJESH KUMAR MEHTHA
                       ...       Respondent

                For Petitioner  :SRI.V.SETHUNATH

                For Respondent  :SRI.MVS.NAMBOOTHIRY

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :24/10/2008

 O R D E R
                 M. SASIDHARAN NAMBIAR, J.
                   ------------------------------------------
                   CRL.R.P. NO. 512 OF 2007
                   ------------------------------------------
             Dated this the 24th day of October, 2008


                               O R D E R

Petitioner was concurrently convicted and sentenced for

the offence under section 138 of Negotiable Instruments Act.

First respondent is the complainant. Ext.P2 to P8 cheques were

admittedly issued by petitioner to the first respondent towards

value of the articles purchased from the first respondent. They

were dishonoured when presented under Ext.P9 series of

dishonour memos. Ext.P10 notice was sent demanding the

amount covered by the dishonoured cheques and admittedly

petitioner did not pay the amount. In such circumstances

petitioner cannot dispute the fact that he committed the offence

under section 138 of N.I. Act. In fact this aspect is not in

dispute. Revision is filed challenging only the sentence. Case of

the petitioner is that when the trial was in progress there was a

talk of settlement between the counsel appearing on both sides

and for the amount covered by Exts.P2 to P8 cheques,

Rs.25,000/- inclusive of interest and cost was agreed to be paid

CRRP512/08 2

and petitioner paid that amount through the counsel and though

payment of Rs.25,000/- was received, later first respondent

contended that the said payment was not towards the

dishonoured cheques, but to other transactions. When first

respondent was examined as PW1, he took up this stand. As the

original counsel who was appearing for first respondent

relinquished the vakalath, he was examined on the side of

defence as DW1. DW1 deposed that he received Rs.25,000/- as

paid by the petitioner through his counsel. But he deposed that

according to first respondent it is not in respect of the

transaction covered under Exts.P2 to P8 cheques. Learned

Magistrate and learned Sessions Judge accepted that

explanation and convicted and sentenced the petitioner.

Learned Chief Judicial Magistrate sentenced petitioner to a fine

of Rs.25,000/- and in default simple imprisonment for three

months. Learned Sessions Judge confirmed the same.

2. The only question is whether the sentence is to be

modified. Though learned counsel appearing for first

respondent argued that Rs.25,000/- received by first respondent

during the pendency of the case do not relate to the transaction

covered under Exts.P2 to P8 cheques and when petitioner was

CRRP512/08 3

examined Exts.P15 to P17 invoices were shown to him to prove

that there were other transactions, they relate to transactions

prior to the issuance of Exts.P2 to P8 cheques. It was argued by

first respondent that petitioner as DW2 attempted to wriggle out

when Exts.P15 to 17 were shown and deposed that he cannot

say whether those articles were received by him. It was argued

that hence the payment proved by evidence of DW1 is not in

respect of amount covered by Exts.P2 to P8 cheques but other

transactions. First of all the question whether the said payment

is towards the cheque covered by the dishonoured cheques or

towards other transaction is not to be decided in this case. But

while considering reasonableness of the sentence that question

assumes importance. If Exts.P15 to P17 relate to the transaction

after issuance of Exts.P2 to P8 cheques, submission of the

learned counsel appearing for first respondent could have been

accepted. It is seen that Ext.P15 to P17 that they are the

invoices for the period 1993-1994, when Exts.P2 to P8 cheques

were issued during the period February 1996 to March 2006.

Therefore it is not possible to believe the explanation that when

the sword of prosecution was hanging over the head of the

petitioner, he would pay the amount in respect of other

CRRP512/08 4

transactions and that too through the counsel appearing for the

first respondent in this case. In such circumstances interest of

justice warrants modification of sentence.

Revision is allowed in part. While confirming the

conviction for the offence under section 138, the sentence as

awarded by learned Magistrate and confirmed by learned

Sessions Judge is confirmed. The sentence is modified to a fine

of Rs.2000/- and in default simple imprisonment for one month.

The direction to pay compensation under section 357(1) of

Cr.P.C. is set aside. If petitioner has deposited any amount

before the learned Magistrate as directed by this Court, he is

entitled to withdraw the same less the fine.

M. SASIDHARAN NAMBIAR,
JUDGE

Okb/-