IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3458 of 2009()
1. SIYAD KOKER,
... Petitioner
Vs
1. K.J.MATHEWS,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.ANAND
For Respondent : No Appearance
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :06/11/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.3458 of 2009
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Dated this the 6th day of November, 2009
ORDER
The revision petitioner was convicted by the Judicial
Magistrate of the First Class-I, Aluva in C.C.No.1793 of 2004 on
his file for offence under Section 138 of Negotiable Instruments
Act and sentenced to simple imprisonment for one year with
direction to pay Rupees fifteen lakhs, the cheque amount as
compensation to the first respondent. In Criminal Appeal
No.196 of 2009, the conviction and sentence were confirmed.
Assailing the legality, correctness and propriety of the above
conviction and sentence as confirmed in appeal, this revision
petition was filed.
2. Having heard the learned counsel for the revision
petitioner and perusing the judgments of the courts below, I find
that the first respondent had succeeded to establish that the
revision petitioner who is involved in film industry, owed a sum
of Rupees fifteen lakhs to the first respondent and in discharge
of the said liability, Ext.P1 cheque dated 20/4/2004 drawn on
Catholic Syrian Bank, Kochi Branch was issued and that when
Ext.P1 cheque was sent for collection through Federal Bank,
Crl.R.P.No.3458 of 2009
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Thottakattukara Branch, it was returned dishonoured for
insufficiency of funds, as evidenced by Exts.P2 and P3 memos
dated 21/4/2004 and 22/4/2004. Though a notice dated
28/4/2004, demanding discharge of liability was caused and it
was acknowledged by the revision petitioner as evidenced by
Ext.P6, the liability was not discharged. Neither there is any
reply. The revision petitioner took up a defence that while
borrowing Rs.5,00,000/- from one Mathew, a blank cheque was
given as security, and utilising that cheque, the prosecution was
launched. But regarding that no evidence was let in. The failure
to respond to the notice demanding discharge of liability would
indicate that in fact, the revision petitioner had no good defence
at that time and the defence now advanced is the result of an
after thought. He had also challenged the means of the first
respondent to part with the amount said to have been lent. In
support of the defence version, two witnesses were examined as
DWs.1 and 2. The case of the first respondent is that his wife
had obtained a sum of Rs.60,00,000/- in Land Acquisition case
and borrowed money from Karim and Shaiju. DW.1 had deposed
that he who was PWD contractor had borrowed Rs.7,00,000/-
Crl.R.P.No.3458 of 2009
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from the 1st respondent in 2003 and it was repaid in March,
2004. DW.2 had deposed that he who is a wholesaler in fruits
had given Rs.8,00,000/- to the 1st respondent in March, 2004.
The transaction alleged in this case is in April, 2004. Thus the
evidence of revision petitioner itself would support the case of
the first respondent regarding the means. In the above
circumstance, there is little material to conclude that the 1st
respondent got Ext.P1 cheque in any manner other than what
was deposed by PW.1. The means to lent the amount, the
liability, issuance of cheque, dishonouring of cheque and demand
to clear the liability is proved by the testimony of PW.1. I find
that the courts below had rightly arrived a conclusion that the
first respondent had succeeded to establish the offence alleged.
The evidence of PW.1 is really supported by the defence
evidence also. Hence, I find that the conviction under challenge
is based on cogent evidence and requires no interference.
3. Taking note that the transaction alleged is relating to
the film industry and that due to reasons beyond the control of
the revision petitioner, he could not pay the amount and he was
forced to face the prosecution, I find that the revision petitioner
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is entitled to leniency in sentence and that a sentence of
imprisonment till rising of the court with direction to pay the
compensation would meet the ends of justice.
4. In the result, the revision petition is allowed in part.
While confirming the conviction, the sentence is reduced to
imprisonment till rising of the court. The revision petitioner
shall pay Rupees Fifteen lakhs as compensation to the first
respondent. In the event of failure, the revision petitioner shall
undergo simple imprisonment for six months. The revision
petitioner is granted six months time to pay the compensation.
Till then, the bail bond executed by him will remain in force.
Registry may address the Commissioner of Income Tax to
verify whether Income tax returns of PW.1, DWs.1 and 2
reflected the transactions as deposed in this case.
P.S.GOPINATHAN, JUDGE
Skj.