IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2790 of 2009()
1. SASIDHARAN NAIR, S/O.KUNJUKRISHNA PILLAI
... Petitioner
Vs
1. CHINTHAMANI, W/O.PRABHAKARAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.SUBHASH CYRIAC
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :28/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2790 of 2009
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Dated this the 28th day of August, 2009
O R D E R
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Petitioner faced trial in the court of learned Judicial First Class
Magistrate-II, Varkala in S.T. No.119 of 2006 for offence punishable
under Section 138 of the Negotiable Instruments Act. Complaint of
respondent No.1 is that she advanced Rs.1,00,000/- to the petitioner
on 1.1.2004 by way of loan, latter issued Ext.P1, cheque dated
1.2.2004 for its repayment but the cheque was dishonoured for the
reason “not arranged for”. Cause of dishonour is proved by Exts.P2
and P3. Service of statutory notice on petitioner is proved by Exts.P4
to P6. Petitioner has not replied to the notice. She contended that
she had no transaction with respondent No.1 but she does not know in
what manner his cheque came to the custody of respondent No.1.
Petitioner examined D.W.1, Manager of the bank of respondent No.1.
D.W.1 was summoned to produce details of account No.172386. She
stated that there is no such account maintained in her bank. It is
revealed from Ext.P3, intimation produced from the collecting bank
that account number of respondent No.1 is SM/AC 199. After the
evidence of D.W.1, petitioner took no steps to summon the details of
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that account. Learned magistrate found that contention of petitioner is
not proved and held petitioner guilty. Appellate court has confirmed
that finding. Concurrent finding is under challenge in this revision.
2. So far as the execution of cheque is concerned, on the one
side there is evidence of respondent No.1 regarding the transaction
leading to the execution of the cheque. On the other side evidence is
nil and contention raised by petitioner is that he does not know in what
manner his cheque reached respondent No.1. That explanation did not
sound good. It is also relevant to note that petitioner did not reply to
the statutory notice served on him. In the circumstances courts below
rightly found that there is nothing to disbelieve the evidence of
respondent No.1 and held petitioner guilty. I find no reason to differ
from that finding.
3. In modification of the sentence and amount of
compensation awarded by the learned magistrate, appellate court
imposed sentence of simple imprisonment till rising of the court and
directed payment of fine of Rs.1,00,000/- to respondent No.1 with
default sentence of imprisonment for two months. It was directed
that fine if realised will be given to respondent No.1. Learned counsel
requested that fine may be converted as compensation payable to
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respondent No.1 directly. Further request is to grant six months’
time to deposit compensation. It is stated that on account of financial
difficulty petitioner is unable to raise the amount immediately. Having
regard to the nature of offence and amount involved, instead of the
sentence of fine petitioner could be directed to pay compensation.
Considering the circumstances stated by learned counsel I am inclined
to grant time till 22.01.2010 to deposit compensation.
Resultantly, this revision petition is allowed in part to the
following extent:
(i) Substantive sentence awarded to
petitioner is modified as simple imprisonment
till rising of the court.
(ii) Sentence of fine is set aside.
Instead petitioner is directed to deposit in the
trial court for payment to respondent No.1
Rs.1,00,000/- (Rupees One lakh only) by way of
compensation under Section 357(3) of the Code
of Criminal Procedure for payment to
respondent No.1 on or before 21.01.2010
failing which petitioner has to undergo simple
imprisonment for three months.
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(iii) It is made clear that it shall be
sufficient compliance with the direction for
deposit of compensation if petitioner paid
compensation to respondent No.1 through his
counsel in the trial court and respondent No.1
filed a statement in the trial court through her
counsel acknowledging receipt of
compensation within the said period.
Petitioner shall appear in the trial court on 21.01.2010 to
receive the sentence. Until then execution of warrant if any against
petitioner will remain in abeyance.
THOMAS P.JOSEPH, JUDGE.
vsv