High Court Kerala High Court

P.S.Ravi vs K.K.Rajesh on 5 April, 2010

Kerala High Court
P.S.Ravi vs K.K.Rajesh on 5 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1364 of 2003()


1. P.S.RAVI, S/O. LATE SUKUMARAN,
                      ...  Petitioner

                        Vs



1. K.K.RAJESH S/O. K.K.KARUNAKARAN,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.SAJAN VARGHEESE K.

                For Respondent  :SRI.A.R.GANGADAS

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :05/04/2010

 O R D E R
                   P.S.GOPINATHAN, J.

                 = = = = = = = = = = = =
                  Crl.R.P.No.1364 of 2003.
                 = = = = = = = = = = = =

            Dated this the 5th day of April, 2010.

                        O R D E R

The revision petitioner was prosecuted by the first

respondent in CC.No.237/1998 on the file of the Judicial

Magistrate of the First Class-III, Palakkad for offence under

Section 138 of the Negotiable Instruments Act with an

allegation that on 5.10.1997 the revision petitioner

borrowed Rs.10,000/- and in discharge of that liability

Ext.P1 cheque dated 24.2.1998 drawn on Akathethara

Service Co-operative Bank Ltd., was issued and that when

sent for collection through Indian Overseas Bank, Palakkad

it was returned bounced for insufficiency of funds and that

despite the notice demanding discharge, the liability was

not discharged.

2. Since the revision petitioner pleaded not guilty,

he was sent for trial. Pws.1 and 2 were examined and

Exts.P1 to P8 were marked. The revision petitioner took up

Crl.R.P.No.1539 of 2009.

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a plea of total denial. No defence evidence was let in. The

learned Magistrate on appraisal of the evidence arrived a

finding of guilty. Consequently, the revision petitioner was

convicted for offence under Sec.138 of the Negotiable

Instruments Act and sentenced to simple imprisonment for

one month and to pay Rs.20,000/- as compensation to the

first respondent under Sec.357(3) of the Code of Criminal

Procedue. Though the revision petitioner preferred

Crl.Appeal No.126/2000 he was not successful. Assailing

the legality, correctness and propriety of the above

conviction and sentence as confirmed in appeal, this

revision petition was filed.

3. According to the learned counsel for the revision

petitioner, the statutory notice, copy of which is marked as

Ext.P3 was issued out of time and hence the prosecution is

not sustainable. Ext.P3 lawyer notice is dated 24.3.1998.

Ext.P6, the memo issued from the bank, is dated 5.3.1998.

This was clearly noticed by the courts below. It is in that

Crl.R.P.No.1539 of 2009.

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circumstance, Pw2, the then Manager of the Indian

Overseas Bank was examined. He had deposed that Ext.P1

cheque was presented for collection through his bank and it

was returned dishonoured for insufficiency of funds and

that Ext.P6 was communicated from the bank only on

16.3.1998. According to him, the delay was due to an

omission from the bank. It is in support of the oral evidence

of Pw2, Ext.P8, an extract of the register maintained by the

bank was produced. Going by the evidence of Pw2 and

Ext.P8, the courts below arrived a finding that Ext.P6 was

communicated to the first respondent only on 16.3.1998.

That finding is absolutely correct. Period for issuing notice

has to be calculated from that date. That being so, the

notice dated 24.3.1998 was found issued in time. I find

little reason to interfere with the concurrent finding of facts

regarding the date of issue of the notice. I find no room for

an alternate finding. So, the plea of the learned counsel for

the revision petitioner that the notice was issued out of time

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is devoid of merit.

4. The learned counsel for the revision petitioner

further contended that the borrowal was only Rs.2,000/- and

that the liability was later discharged. In support of that

contention absolutely there is no material available on

record. It is crucial to note that the revision petitioner

didn’t care to respond to the notice demanding discharge of

the liability. In the event, the liability was anything lesser

than the amount for which the cheque was drawn and what

was mentioned in the notice or that it was discharged as

now contended, the revision petitioner would have

responded to the notice. The silence of the revision

petitioner after acknowledging the notice persuades me to

arrive at an inference that in fact, the revision petitioner

had no good defence at the time when he received the

notice and that the defence raised in trial is the result of an

after thought without the support of any evidence. On the

other hand, the evidence of the first respondent regarding

Crl.R.P.No.1539 of 2009.

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the consideration and liability is supported by the

presumptions under Sec.118 and 138 of the Negotiable

Instruments Act. There isn’t even an attempt to rebut that

presumption. So, I find no reason to interfere with the

concurrent finding of the courts below. There is no error,

illegality or impropriety in the findings. The conviction is

based upon cogent evidence.

5. Taking note that the revision petitioner is an

agriculturist and that an ordinary money transaction had

put him to the trouble of facing the prosecution, I find that

the revision petitioner is entitled to a little leniency in

sentence and that a sentence of imprisonment till the rising

of the court and to pay compensation as ordered by the

courts below would meet the ends of justice.

In the result, this revision petition is allowed in part.

While confirming the conviction, the substantive sentence is

reduced to imprisonment till the rising of the court. The

order to pay compensation is sustained. The revision

Crl.R.P.No.1539 of 2009.

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petitioner is granted two months time to deposit the

compensation amount. If any amount is already deposited,

the first respondent is at liberty to withdraw the same.

P.S.GOPINATHAN
(Judge)

Kvs/-