IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1855 of 2009()
1. G.RAMACHANDRAN NAIR
... Petitioner
Vs
1. C.VARGHESE AND ANOTHER
... Respondent
For Petitioner :SRI.PREMCHAND R.NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.NO. 1855 OF 2009
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Dated this the 12th day of June, 2009
ORDER
This revision is in challenge of judgment of learned IInd
Additional Sessions Judge, Kollam in Criminal Appeal No.1 of
2005 confirming conviction and sentence of the petitioner for
offence punishable under Section 138 of the Negotiable
Instruments Act (for short, “the Act”). A complaint was preferred
by respondent No.1 alleging that petitioner borrowed Rs.75,000/-
from him and for its re-payment, petitioner issued Exts.P1 and
P2, cheques dated 31.7.2000 for Rs.60,000/- and Rs.15,000/-
respectively. Respondent No.1 presented those cheques for
encashment but the same were dishonoured for insufficiency of
funds as proved by Exts.P3 and P4. Respondent No.1 issued
notice to the petitioner intimating him about dishonour and
demanding payment of the amount. Notice was served. Issue
and service of notice are proved by Exts.P5 and P6. There is no
challenge to the finding of the courts below regarding cause of
dishonour of Exts.P1 and P2 and issue and service of statutory
Crl.R.P.No.1855/09 2
notice on the petitioner. Challenge is only to the finding
regarding execution of Exts.P1 and P2, cheques.
2. Respondent No.1 gave evidence as PW1 and stated
that he is acquainted with petitioner and used to go to the
ration shop run by the petitioner and while so, in October
1998, petitioner borrowed the amount from him in connection
with the marriage of his daughter, undertaking that the
amount will be re-paid soon. On his demanding re-payment
petitioner issued Exts.P1 and P2. Case pleaded by the
petitioner is that he had no transaction with respondent No.1
and instead, had given Exts.P1 and P2 to one Ramachandran
Pillai who was working as Peon in the Indian Bank. It was also
contended in the courts below that Exts.P1 and P2 are invalid
on account of material alteration in that, the year of the
cheques have been altered by respondent No.1 without the
knowledge or authority of petitioner.
3. So far as execution of the cheques is concerned, it
is not disputed by petitioner that Exts.P1 and P2 contained his
signature and that those cheques are drawn on his account.
His case that he had given the cheques to Ramachandran Pillai
in the circumstances pleaded by him is not proved or even
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probabilised. Nothing is brought out to disbelieve the evidence
of respondent No.1 regarding the transaction which culminated
in Exts.P1 and P2. Petitioner did not adduce any evidence in
support of his contention. Nor did he reply to the statutory
notice served on him which stated that he borrowed
Rs.75,000/- from respondent No.1 and issued the cheques
for repayment of that amount. In these circumstances I do
not find reason to interfere with the concurrent finding entered
by the courts below that petitioner issued the cheques for the
discharge of a legally enforceable debt/liability.
4. So far as contention regarding alleged material
alternation is concerned, learned magistrate has observed and
that is not disputed before me that at the portion where the
year is corrected there is proper authentication by the
petitioner by putting his full signature. That signature also is
not disputed by the petitioner. Hence petitioner cannot
contend that the cheques are materially altered without his
consent or authority. On going through the judgments under
challenge I do not find reason to interfere with conviction of
the petitioner.
5. Learned magistrate sentenced the petitioner to
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undergo Simple Imprisonment for four months and directed
him to pay Rs.75,000/- (Rupees seventy five thousand only) to
respondent No.1 as compensation. Default sentence of six
months was also provided. Appellate Court did not interfere
with the sentence. Learned counsel submits that substantive
sentence awarded to the petitioner is excessive and requested
for leniency. He also requested for six months’ time to deposit
compensation in the trial court.
6. Having regard to the nature of offence proved
against petitioner and the object of legislation, I am inclined to
think that Simple Imprisonment till rising of the court is
sufficient in the ends of justice. However, there is no reason
to interfere with the direction issued by learned magistrate, as
confirmed by the appellate court, for payment of compensation
and the default sentence provided. Considering the
circumstances stated by learned counsel and the amount
involved, petitioner is granted three months’ time to deposit
compensation in the trial court.
7. I have dispensed with notice to respondent No.1 in
view of the order I proposed to pass which is not prejudicial to
him.
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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 from today
to deposit compensation in the trial court. In case of failure he
shall undergo imprisonment as ordered by learned magistrate.
iii) It is made clear that it will be sufficient compliance
with the direction for payment to compensation if petitioner
paid the compensation to respondent No.1 through his counsel
in the trial court and respondent No.1 filed a statement in the
trial court through his counsel acknowledging receipt of the
compensation within the aforesaid time.
iv) Petitioner shall appear in the trial court on
15.9.2009 to receive the sentence.
THOMAS P. JOSEPH, JUDGE
Acd
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