IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 576 of 2002()
1. JACOB JOHN, PALAMOOTTIL VADAKKETHIL,
... Petitioner
Vs
1. THOMASKUTTY, GRACE BHAVAN, PARKODU MURI,
... Respondent
2. STATE OF KERALA, BY THE PUBLIC
For Petitioner :SRI.PHILIP M.VARUGHESE
For Respondent :SRI.SUNIL JACOB JOSE
The Hon'ble MR. Justice R.BASANT
Dated :16/03/2009
O R D E R
R.BASANT, J
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Crl.R.P.No.576 of 2002
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Dated this the 16th day of March 2008
O R D E R
This revision petition is directed against a concurrent
verdict of guilty, conviction and sentence in a prosecution under
Section 138 of the Negotiable Instruments Act.
2. The cheque was for an amount of Rs.70,000/-.
Signature in the cheque is admitted. Handing over of the cheque
in connection with creation of a financial liability is also
admitted. But contention is raised that the cheque was not
issued for the due discharge of any legally enforcible debt or
liability; but was issued as security when the accused entered
into a financial transaction with the father-in-law of the
complainant. That cheque is being misused, it is alleged.
3. Notice of demand though duly received and
acknowledged did not evoke any response. The complainant
examined PWs 1 to 4 and proved Exts.P1 to P7. The accused
examined a witness as DW1. PW1 is the complainant. PWs 2
and 3 are the Managers of the drawing and collecting banks.
DW1 claims to have seen the real transaction between the
accused and the father-in-law of the complainant. The courts
Crl.R.P.No.576/02 2
below concurrently came to the conclusion that the evidence on
the side of the complainant can be safely believed and that
shows that there was a legally enforcible debt/liability and for
discharge of the same, the cheque was issued. Accordingly, the
courts below proceeded to pass the impugned concurrent
judgments.
4. Called upon to explain the nature of the challenge
which the petitioner wants to mount against the impugned
concurrent judgments, the learned counsel for the petitioner
reiterates the contention that the cheque was not issued by the
accused to the complainant for the due discharge of any legally
enforcible debt/liability. It was issued as a blank signed cheque
as security when the accused entered into a transaction with the
complainant’s father-in-law. The evidence of DW1 should have
been believed by the courts, it is contended.
5. I have rendered my anxious consideration to the
contentions raised. I am unable to agree with the learned
counsel for the petitioner. The oral evidence of PW1 clearly
shows the circumstances under which the cheque was received
by the complainant. That version of the complainant is
eminently supported by the absence of a response to the notice
Crl.R.P.No.576/02 3
of demand which was duly served on the accused. The
presumption under Section 139 of the N.I.Act stares at the
accused. The evidence of DW1 was found by the courts below to
be not convincing for acceptance. I am unable to agree that
there are any circumstances justifying interference with the
findings of fact rendered concurrently by the court below.
6. The learned counsel finally submits that the petitioner
is entitled for leniency. The sentence imposed is S.I for six
months and compensation of Rs.50,000/-. I have already
adverted to the principles governing imposition of sentence in a
prosecution under Section 138 of the N.I.Act in the decision in
Anilkumar vs.Shammi [2002(3)KLT 852]. I am satisfied that
leniency can be shown to the petitioner/accused. Substantive
sentence of imprisonment can be modified. An appropriate
modification of payment of the direction for compensation
coupled with a default sentence can be imposed.
7. In the result:
a) This revision petition is allowed in part.
b) The impugned verdict of guilty and conviction of the
petitioner under Section 138 of the N.I.Act are upheld.
Crl.R.P.No.576/02 4
c) But the sentence imposed is modified and reduced. In
supersession of the sentence imposed on the petitioner by the
courts below, he is sentenced to undergo imprisonment till rising
of court. He is further directed under Section 357(3) Cr.P.C to
pay an amount of Rs.70,000/- (Rupees seventy thousand only) as
compensation and in default, to undergo S.I for a period of two
months. If realised, the entire amount shall be released to the
complainant as compensation.
8. The petitioner shall have time till 30/04/2009 to make
the payment. The impugned sentence shall not be executed till
that date. The petitioner shall appear and his sureties shall
produce him before the learned Magistrate on or before
02/05/2009 to serve the modified sentence hereby imposed.
(R.BASANT, JUDGE)
jsr
Crl.R.P.No.576/02 5
The petitioner now faces a sentence of imprisonment till rising of
court/S.I for a period of ………… and there is a direction to pay
the actual cheque amount as compensation and in default to
undergo S.I for a period of ………. months.
Crl.R.P.No.576/02 6
R.BASANT, J
Crl.R.P.No.576 of 2002
ORDER
16th DAY OF MARCH 2009