IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3141 of 2007()
1. P.H.NOUSHAD, S/O.HAMSA,
... Petitioner
Vs
1. PRAYESH KUMAR,
... Respondent
2. STATE OF KERALA- REPRESENTED BY THE
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :24/09/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 3141 OF 2007 C
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Dated this the 24th day of September, 2007
O R D E R
In this Revision filed under Section 397 read with Sec. 401
Cr.P.C. the petitioner who was the accused in C.C. No.453/2003 on the
file of the J.F.C.M.-II, Palakkad challenges the conviction entered and
the sentence passed against him for an offence punishable under Sec.
138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as
‘the Act’).
2. I heard the learned counsel for the Revision Petitioner and
the learned Public Prosecutor.
3. The courts below have concurrently held that the cheque in
question was drawn by the revision petitioner in favour of the
complainant on the drawee bank, that the cheque was validly presented
to the bank, that it was dishonoured for reasons which fall under Section
138 of the Act, that the complainant made a demand for payment by a
notice in time in accordance with clause (b) of the proviso to Section 138
of the Act and that the Revision Petitioner/accused failed to make the
payment within 15 days of receipt of the statutory notice.
4. The learned counsel appearing for the revision petitioner
submitted the following before me:-
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The 1st respondent complainant(PW1), has admitted that there
was only one transaction with the accused. The accused has produced
Ext.X1 ledger extract through DW1, the Bank Manager, to show that on
13.7.01 the accused had borrowed a sum of Rs.50,000/- from the
complainant as per a cheque. According to the accused, this sum of
Rs.50,000/- was repaid by him. But the complainant did not return the
cheque leaf in spite of his demand and when the complainant was
approached, he said that he would not take any action against the
accused. In the light of this evidence, the case of the complainant that
the accused borrowed a sum of Rs.2,00,000/- as evidenced by Ext.P2
cheque dated 22.5.03 cannot be believed. This evidence adduced by
the accused has the effect of rebutting the presumption under sections
118 and 139 of the Negotiable Instruments Act.
5. I cannot agree with the above submissions. Even if the
transaction dated 13.7.01 was a loan transaction of Rs.50,000/- covered
by a cheque issued by the complainant to the accused, his case that he
had repaid the said amount and his explanation regarding the failure on
the part of the complainant to return the cheque leaf cannot be accepted
for a moment. If the amount borrowed was Rs.50,000/-, an explanation
is due as to why he gave a signed blank cheque to the
complainant/accused instead of giving a cheque for the exact amount or
an amount together with the interest calculated as per the agreement
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between the parties. Instead, he would say that he had handed over a
signed blank cheque to the complainant. His further defence is that he
had discharged that liability by paying the amount. The said discharge
is not evidenced by any scrap of paper. If, according to him, even after
repaying the loan, the blank cheque leaf was not returned by the
complainant, he should have, as a reasonable and prudent man, taken
steps for return of the cheque leaf even if the complainant was
unjustifiably raising a dispute regarding interest. That was also not
done. Under these circumstances, the admission by PW1 that there
was only one transaction can only relate to the transaction covered by
Ext.P1 cheque for Rs.2,00,000/- and not for Rs.50,000/- as contended
by the revision petitioner. Both the courts have considered and rejected
the defence set up by the revision petitioner while entering the above
finding. The said finding has been recorded on an appreciation of the
oral and documentary evidence. I do not find any error, illegality or
impropriety in the finding so recorded concurrently by the courts below.
The conviction was thus rightly entered against the petitioner.
6. What now survives for consideration is the question as to
whether a proper sentence has been imposed on the Revision
Petitioner. I am, however, inclined to modify the sentence imposed on
the revision petitioner provided he complies with the condition
hereinafter mentioned. Accordingly, if the revision petitioner pays to the
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1st respondent complainant by way of compensation under section 357
(3) Cr.P.C. a sum of Rs.2,00,000/- (Rupees two lakhs only) within five
months from today, then he need to undergo only imprisonment till the
rising of the court. If on the other hand, the revision petitioner commits
default in making the payment as aforesaid, he shall undergo simple
imprisonment for three months by way of default sentence. Money, if
any, paid by the revision petitioner pursuant to the orders, if any, passed
by the lower appellate court shall be refunded to the revision petitioner.
This Revision is disposed of confirming the conviction but
modifying the sentence as above.
(V. RAMKUMAR, JUDGE)
aks