IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1868 of 2009()
1. CHACKO JOSEPH, KORATHARA HOUSE,
... Petitioner
Vs
1. SUNNY THOMAS, KOOTHRAPPALLIL HOUSE,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.P.VINODKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.Nos.1867 of 2009
&
1868 of 2009
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Dated this the 19th day of June, 2009.
ORDER
Notice to respondent No.1 is dispensed with in view of the order I am
proposing to make in this revision which is not prejudicial to him. Public
Prosecutor takes notice for respondent No.2.
2. These revisions are in challenge of separate judgments passed by
the learned Sessions Judge, Kottayam in Crl.Appeal Nos.249 of 2008 and 251
of 2008 confirming conviction of the petitioner for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying
the sentence. Since the parties in these revisions are same and the facts
involved are also similar, revisions are being disposed of by a common order.
3. In Crl.R.P.No.1867 of 2009 arising from S.T.No.939 of 2006 of the
court of learned Judicial Magistrate of First Class-I, Kottayam case of respondent
No.1 is that petitioner borrowed Rs.78,500/- from him and for repayment of that
amount, issued Ext.P1, cheque dated 15.11.2005. That cheque on
presentation was returned for insufficiency of funds as proved by Exts.P2 and
P3. On getting dishonour intimation respondent No.1 issued notice to the
petitioner on 31.1.2006 (Ext.P4 is the copy of notice) intimating dishonour and
demanding payment of the amount. Ext.P5 is produced to show that notice
Crl.R.P.No.1867 & 1868/2009
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was sent by registered post. Ext.P6 shows that petitioner was served with the
notice on 4.2.2006. Respondent No.1 gave evidence as PW1 and stated that
petitioner borrowed Rs.78,500/- from him and for the discharge of that liability
issued the cheque. When questioned under under Section 313 of the Code of
Criminal Procedure, petitioner claimed that respondent No.1 is his relative and a
trusted person, respondent No.1 used to visit his house often. The cheque in
question is one of the cheques he lost from his house five years before filing
of the complaint.
4. In Crl.R.P.No.1868 of 2009 arising from S.T.No.938 of 2006 of the
court of learned Judicial Magistrate of First Class-I, Kottayam case of respondent
No.1 is that petitioner borrowed Rupees one lakh from him and for repayment of
that amount, issued Ext.P1, cheque dated 7.10.2005. That cheque on
presentation was returned for insufficiency of funds as proved by Exts.P2 and
P3. On getting dishonour intimation respondent No.1 issued notice to the
petitioner on 31.1.2006 intimating dishonour and demanding payment of the
amount. Issue and service of notice on petitioner are proved by Exts.P4 and
P6. Respondent No.1 gave evidence as PW1 and testified to his case. In this
case also, petitioner raised the same defence as in S.T.No.939 of 2006. On the
Crl.R.P.No.1867 & 1868/2009
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question as to the cause of dishonour of the cheques and issue and service of
statutory notice, there is no dispute and the same are proved by evidence.
Challenge is to the execution of the cheques.
5. Courts below were not impressed by the contention raised by the
petitioner in both the cases. As regards the due execution of the cheques,
respondent No.1 has given evidence as PW1 in both the cases. It is admitted
that the cheques are signed by the petitioner and drawn on the account
maintained by him. His contention is that he lost the cheques five years before
filing of the complaint. If that be so, in the normal course he would have
informed his bank about loss of cheques and issued direction for stopping
payment of any amount as per those cheques. That has not happened.
Moreover inspite of being served with statutory notice in both the cases,
petitioner did not reply to that. The suggestion put to respondent No.1 while he
was in the box that he stealthily got possession of cheques has been denied by
him. Nothing was brought out to disbelieve the evidence of PW1. In these
circumstances I do not find reason to interfere with the concurrent finding of the
courts below as to the due execution of cheque.
6. In S.T.No.939 of 2006, learned magistrate sentenced the petitioner
to undergo simple imprisonment for four months. Appellate court modified the
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sentence as one till rising of the court and fine of Rs.78,500/- with default
sentence of simple imprisonment for three months. In S.T.No.938 of 2006,
learned magistrate sentenced the petitioner to undergo simple imprisonment for
six months. Appellate court modified the sentence as one till rising of the court
and fine of Rupees one lakh with default sentence of simple imprisonment for
three months. I do not find reason to interfere with the sentence as modified by
the appellate court.
7. Learned counsel for petitioner requested that petitioner may be
granted six months’ time to deposit the fine in the trial court as ordered by the
appellate court. It is seen from the judgment of the appellate court that petitioner
has already been given three months’ time to deposit the fine. However
considering the circumstances stated by the learned counsel as to the difficulty
of the petitioner to raise the amount immediately and considering the amount
involved, I am inclined to grant three months’ further time to deposit the fine in
the trial court. It is made clear that the substantive sentence awarded by the
appellate court or the default sentence for non-payment of fine are not interfered
with.
Resultantly, these revisions fail and are accordingly dismissed. Petitioner
is granted three months’ time from today to deposit fine in both the cases in the
trial court as ordered by the appellate court. In case of default Petitioner shall
Crl.R.P.No.1867 & 1868/2009
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undergo the default sentence as ordered by the appellate court. Petitioner shall
appear in the trial court on 22.9.2009 to receive the sentence.
Crl.M.A.Nos. 5653 of 2009 in Crl.R.P.No.1867 of 2009 and 5654 of 2009
in Crl.R.P.No.1868 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks