IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1827 of 2009()
1. PARUKUTTY,W/O.NARAYANAN,AATTAKKARAVEEDU,
... Petitioner
Vs
1. RAMAKRISHNAN,S/O.LATE VELAYUDHAN,
... Respondent
2. STATE OF KERALA,REPRESENTED BY PUBLIC
For Petitioner :SRI.RAJESH NAMBIAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1827 of 2009
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Dated this the 10th day of June, 2009.
ORDER
Notice to respondent No.1 is dispensed with in view of the order I am
proposing to make and which is not prejudicial to him. Public Prosecutor takes
notice for respondent No.2.
2. This revision is in challenge of judgment of learned Additional
Sessions Judge, Adhoc-I, Palakkad in Crl.Appeal No.312 of 2007 confirming
conviction but modifying sentence of the petitioner for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the Act).
3. According to respondent No.1, petitioner who is a neighbour
entered into an agreement with him on 8.6.2004 for sale of 27.25 cents of land
belonging to the petitioner for Rs.2,500/- per cent. Petitioner received
Rs.55,000/- from respondent No.1 by way of advance. According to respondent
No.1, he had spent Rs.15,000/- for effecting cultivation in the property agreed to
be sold. Later, petitioner backed out from the agreement. Respondent No.1
preferred complaint to the C.I. of Police, Mannarkkad. There was a mediation
as per which petitioner agreed to return the advance sum of Rs.55,000/- and
the amount (Rs.15,000/-) respondent No.1 had spent for effecting cultivation in
the property agreed to be sold. Out of that, petitioner paid Rs.29,000/- in cash
and for the balance sum of Rs.41,000/- issued two cheques dated 10.11.2004
for Rs.21,000/- and dated 10.12.2004 for Rs.20,000/-. Those cheques were
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dishonoured for insufficiency of funds. On getting dishonour intimation,
respondent No.1 issued notice to the petitioner intimating dishonour and
demanding payment. Respondent No.1 gave evidence as PW1 and proved
Exts.P1 to P4 series. Exts.P1 and P2 are the cheques referred above.
Dishonour of those cheques for the above stated reason is proved by Ext.P3
series. Issue and service of notice to the petitioner are not disputed and are
proved by Ext.P4 series. According to the petitioner, she had borrowed
Rs.50,000/- from respondent No.1 in connection with her daughter’s marriage
and at that time given two signed blank cheques as security. The amount
borrowed was later repaid with interest but the cheques were not returned.
Petitioner did not adduce evidence in support of that contention.
4. Respondent No.1 has given evidence regarding the transaction
which culminated in execution of the cheques in question. It is contended by
learned counsel that the agreement referred in the complaint is not produced.
But then, the complaint is for dishonour of the cheques, Exts.P1 and P2 for
insufficiency of funds and for non-payment of the amount inspite of dishonour
intimation and demand. It is not absolutely necessary that the original cause of
action pleaded by respondent No.1 had to be proved. What is required to be
pleaded and proved is the due execution of the cheques in question for the
discharge of a legally enforceable debt/liability. In this case it is admitted by the
petitioner also that Exts.P1 and P2 contained her signature, are drawn on the
account maintained by her and she had given those cheques to respondent
No.1 though according to her, as security for Rs.50,000/- she had taken as
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loan. But, petitioner did not adduce evidence or bring out any circumstances to
prove or probabilise that she had taken a loan of Rs.50,000/-. At any rate there
is no evidence to show that cheques were given in signed blank form as security
or that the liability under the loan allegedly taken by the petitioner from
respondent No.1 was discharged. It is pertinent to note that petitioner did not
reply to the statutory notice. Nothing is brought out to disbelieve the evidence
of respondent No.1. Courts below in these circumstances are justified in holding
that the petitioner issued the cheques in question for the discharge of a legally
enforceable debt/liability and that she failed to rebut the presumption under
Section 139 of the Act. Hence conviction of the petitioner is legal and proper
and required no interference.
5. Learned magistrate sentenced the petitioner to undergo simple
imprisonment for three months and pay Rs.41,000/- as compensation. In default
of payment of compensation, petitioner was directed to undergo simple
imprisonment for 60 days. Appellate court confirmed conviction as well as the
direction for payment of compensation. Learned counsel contends that
petitioner and respondent No.1 are neighbours and that in the facts and
circumstances of the case sentence may be modified. Learned counsel
requested four months’ time to deposit the compensation in the trial court.
Considering the facts and circumstances of the case and the nature of the
offence committed, I am satisfied that simple imprisonment till rising of the court,
payment of compensation as awarded by the learned magistrate and in default
of payment, simple imprisonment for two months is sufficient in the ends of
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justice.
Resultantly, this revision is allowed in part to the following extent:
i. Substantive sentence awarded to the petitioner is modified
as simple imprisonment till rising of the court.
ii. Petitioner is granted three months’ time to deposit the
compensation as ordered by the learned magistrate, in the trial court. In case of
default, she shall undergo simple imprisonment for two months.
iii. Petitioner shall appear in the trial court on 12.9.2009 to
receive the sentence.
Execution of warrant if any against the petitioner will stand in abeyance till
12.9.2009. Communicate the order to the court concerned.
Crl.M.A.No.5534 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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