K.Y.Kuriakose vs John on 19 August, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2669 of 2009()


1. K.Y.KURIAKOSE, AGED 45,
                      ...  Petitioner

                        Vs



1. JOHN, AGED 58, S/O LATE PAILY,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.SHAJI THANKAPPAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :19/08/2009

 O R D E R
                              THOMAS P. JOSEPH, J.
                             --------------------------------------
                               Crl.R.P.No.2669 of 2009
                             --------------------------------------
                      Dated this the 19th day of August, 2009.

                                          ORDER

Notice to respondent No.1 is dispensed with in view of the order I am

proposing to pass in this revision which is not prejudicial to him. Public

Prosecutor takes notice for respondent No.2.

2. On a complaint preferred by the original complainant, learned

Judicial First Class Magistrate, Kolenchery tried petitioner in C.C.No.123 of 2004

for offence punishable under Section 138 of the Negotiable Instruments Act

(for short, “the Act”). According to the original complainant, petitioner borrowed

Rs.20,000/- from her and for repayment of that amount issued Ext.P1, cheque

dated 26.12.2003. Its dishonour for insufficiency of funds is proved by

Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4

to P6. During the pendency of the case before the learned magistrate, original

complainant died and her husband was permitted to continue prosecution of the

case (he is respondent No.1 in this revision). He gave evidence as PW1 and

testified to the transaction. According to the petitioner, he borrowed Rs.5,000/-

from PW1 and gave signed blank cheque which has been misused. It is

contended that finding of the courts below regarding execution of the cheque is

not correct.

3. It is not disputed that Ext.P1 contained the signature of petitioner

Crl.R.P.No.2669/2009

2

and is drawn on the account maintained by him. Though he contended that he

borrowed only Rs.5,000/- from PW1 (respondent No.1) latter denied that. There

is no evidence or circumstance to show that petitioner gave signed blank

cheque in the circumstances pleaded by him. Petitioner has also not replied to

the statutory notice. Nothing was brought out to disbelieve the evidence given

by respondent No.1. In the circumstances I do not find reason to interfere with

the concurrent finding entered by the courts below and the consequent

conviction of petitioner.

4. Learned magistrate sentenced petitioner to undergo simple

imprisonment for four months. There was a direction for payment of

compensation of Rs.20,000/- to respondent No.1 and in default of payment to

undergo simple imprisonment for two months. Appellate court modified the

substantive sentence as simple imprisonment till rising of the court. No

interference was made with respect to the direction for payment of compensation

and default sentence. Having regard to the nature of offence, object of

legislation and the amount involved there is no reason to interfere with the

substantive sentence as modified by the appellate court or direction for payment

of compensation and default sentence as confirmed by that court, at the

instance of petitioner.

5. Learned counsel submitted that since petitioner on account of

financial difficulties is unable to raise the amount immediately, he may be

granted six months’ time to deposit compensation. Learned counsel requested

Crl.R.P.No.2669/2009

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that petitioner may be permitted to pay compensation directly to respondent

No.1. Having regard to the circumstances stated by learned counsel, I am

inclined to grant time to the petitioner till 18.12.2009 to deposit compensation.

Resultantly, this revision petition fails. It is dismissed. Petitioner is

granted time till 18.12.2009 to deposit compensation in the trial court as ordered

by the trial court. It is made clear that it will be sufficient compliance of 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 above said period. Petitioner shall appear in the trial

court on 21.12.2009 to receive the sentence. Until then execution of warrant if

any against the petitioner will stand in abeyance.

THOMAS P.JOSEPH,
Judge.

cks