IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2796 of 2009()
1. BAIJU, AGED 38 YRS.,
... Petitioner
Vs
1. MATHEW JOSEPH, AGED 40 YRS.,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.K.ANAND
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2796 of 2009
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Dated this the 27th day of August, 2009
O R D E R
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Notice to Respondent No.1 is dispensed with in view of the order
I am proposing to pass 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-III), North Parur in Crl. Appeal
No.558 of 2007 confirming conviction and sentence of petitioner
for offence punishable under Section 138 of the Negotiable
Instruments Act (for short, “the Act”).
3. According to respondent No.1, petitioner borrowed
Rs.60,000/- from him and on his demanding repayment issued Ext.P1,
cheque dated 25.6.2003. That cheque was dishonoured as account
was closed which is proved by Exts.P2 and P3. Service of statutory
notice on petitioner is proved by Exts.P4 and P5. Respondent No.1
gave evidence as P.W.1 and claimed that petitioner borrowed the
amount and issued the cheque. According to the petitioner, he had no
transaction with respondent No.1. He denied signature in Ext.P1,
cheque. It is contended that due execution of the cheque is not
proved. Respondent No.1 in his evidence as P.W1 stated that at the
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time of borrowal petitioner had also issued a promissory note
undertaking to pay the amount but that demand promissory note is not
produced. According to learned counsel for petitioner, non-production
of that demand promissory note is fatal. But law does not require
proof of original cause of action in all cases. What is required to be
pleaded and proved in a prosecution under Section 138 of the Act is
the due execution of the cheque. Though petitioner disputed
signature in Ext.P1 and examined D.W.1, Manager of drawee bank and
proved Ext.D1, fact remained that dishonour of the cheque was not for
the reason of dissimilarity in the signature but as account was closed.
Petitioner has no satisfactory explanation as to how the cheque leaf
reached the hands of respondent No.1. When the cheque is drawn on
the account maintained by petitioner he ought to have taken steps to
show that the signature in Ext.P1 is not of his. Petitioner did not reply
to the statutory notice. There is no evidence or circumstance to show
that cheque leaf happened to be in the custody of respondent No.1 in
any manner otherwise than as told by him. Court below found no
reason to disbelieve the evidence of respondent No.1 and found in
favour of due execution of the cheque. I do not find reason to
interfere with that finding.
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4. Learned magistrate sentenced petitioner to undergo simple
imprisonment for three months. Petitioner was directed to pay
compensation of Rs.61,000/- with a default sentence of simple
imprisonment for forty five days. Appellate court did not interfere
with the sentence, direction for payment of compensation or the
default sentence. It is contended that sentence imposed is excessive.
Learned counsel requested four months’ time to deposit
compensation in the trail court. He submitted that petitioner is out of
station and it would take time for him to pay compensation and that
petitioner may be permitted to pay the compensation directly to
respondent No.1. Considering the circumstances stated by counsel I
am inclined to grant time till 21.12.2009. Having regard to the nature
of offence substantive sentence can be modified as simple
imprisonment till rising of the court. There is no reason to interfere
with the direction for payment of compensation or the default
sentence.
Resultantly, this revision petition 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.
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(ii) Petitioner is granted time till
21.12.2009 to deposit compensation in the
trial court as ordered by the learned
magistrate.
(iii) It is made clear that it shall be
sufficient compliance with the direction for
deposit of compensation if petitioner paid
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
compensation within the said period.
Petitioner shall appear in the trial court on 23.12.2009 to
receive the sentence. It is made clear that it will be open to the
petitioner to deposit/pay compensation and appear in the trial court to
receive the sentence on any day prior to 21.12.2009. Until
appearance as above stated, execution of warrant if any, against
petitioner will remain in abeyance.
THOMAS P.JOSEPH, JUDGE.
vsv