IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2340 of 2009()
1. NOORUDEEN NAZAR, FRUIT MERCHANT,
... Petitioner
Vs
1. M.V.JOSHUVA, MALAYITHAZHATHIL HOUSE,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/07/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No. 2340 of 2009
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Dated this 22nd day of July 2009
ORDER
Notice to respondent No.1 is dispensed with in view of the
order I am proposing to pass in this revision which is not
prejudicial to him. Heard counsel for petitioner and public
prosecutor.
2. This revision is in challenge of judgment of learned
Additional Sessions Judge, Kottayam in criminal appeal No.297 of
2002 confirming conviction and sentence of petitioner for offence
punishable under Sec.138 of the Negotiable Instruments Act.
According to respondent No.1, petitioner owed Rs.64960/- to him
and for repayment of that amount issued Ext.P1, cheque dated
15-05-1999. Dishonour of that cheque for insufficiency of funds is
proved by Exts.P2 and P5. Service of statutory notice on
petitioner is proved by Ext.P3 and P4. Respondent No.1 gave
evidence as PW1 and testified to his case. He stated that
petitioner had borrowed the amount and for repayment of that
amount issued the cheque. According to the petitioner, he has
discharged the liability and in proof of that examined DW1. DW1
stated that respondent No.1 is a contractor engaged in advancing
money on payment of interest and that respondent No.1 had lent
Crl.R.P.No.2340 of 2009 2
a sum of Rs.50000/- to the petitioner. It is further claimed that
petitioner repaid Rs.12000/- in three instalments. Petitioner
claimed that entire amount was repaid. Courts below were not
impressed by the evidence of DW1.
3. It is not disputed that petitioner had money transaction
with respondent No.1. It is also not disputed that in connection
with that, petitioner had given Ext.P1 to respondent No.1. As
regard the case of the petitioner regarding the amount borrowed
and its repayment what is available is evidence of DW1. He
claimed to have been present on all occasions petitioner
borrowed the amount and repaid it in instalments. That version of
DW1 is does not appear to me as truthful. Moreover inspite of
serving statutory notice petitioner did not reply to it. It is in
these circumstances that courts below found in favour of due
execution of the cheque. On going through the judgment under
challenge and hearing learned counsel I do not find any illegality,
irregularity or impropriety in that finding requiring interference.
4. Learned magistrate sentenced the petitioner to
undergo simple imprisonment for six months. Learned Additional
Sessions Judge confirmed the sentence. It is prayed that leniency
may be shown to the petitioner. Having regard to the nature of
Crl.R.P.No.2340 of 2009 3
the offence and object of legislation I am inclined to think that
simple imprisonment till rising of the court is sufficient in the ends
of justice. At the same time, while showing leniency to the
petitioner the plight of respondent No.1 who suffered loss at the
hands of petitioner cannot be forgotten. He has to compensated
for the loss caused to him. This case was decided by the learned
magistrate on 03-07-2002. The cheque is of the year 1999.
Considering these circumstances I direct petitioner to pay
compensation or Rs.72000/- to respondent No.1 failing which,
petitioner has to undergo simple imprisonment for a period of six
months.
5. Learned counsel requested that petitioner may be
granted three months’ time to deposit compensation. He stated
that petitioner has several liabilities also to be discharged.
Considering the circumstances stated by learned counsel,
petitioner is granted two months’ time from today to deposit
compensation.
Resultantly this revision is allowed in part to the following
extent:
(1)Substantive sentence awarded to the petitioner is modified as
simple imprisonment till rising of the court.
Crl.R.P.No.2340 of 2009 4
(2)Petitioner is directed to deposit in the trial court for payment to
respondent No.1 Rs.72000/- (Rupees Seventy Two Thousand
Only) as compensation under Sec.357(3) of the Code of
Criminal Procedure within two months failing which petitioner
shall undergo simple imprisonment for six months.
Petitioner shall appear in the trial court on 24-09-2009 to
receive the sentence.
THOMAS P JOSEPH, JUDGE
Sbna/