IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 391 of 2010()
1. THOMAS JOSEPH, S/O.JOSEPH
... Petitioner
2. MERCY THOMAS, W/O.THOMAS JOSEPH
Vs
1. SREE GOKULAM CHIT & FINANCE CO.(P) LTD.,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.V.G.ARUN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :08/02/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.391 of 2010
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Dated this the 8th day of February, 2010
ORDER
The revision petitioners are the accused in a prosecution
for the offence punishable under Section 138 of the Negotiable
Instruments Act. The court below found that they are guilty of
the offence charged against them and accordingly they were
convicted and sentenced under Section 138 of the Negotiable
Instruments Act and also directed to pay a compensation to the
complainant under Section 357(3) Cr.P.C.
2. The first respondent is the complainant. The case of the
complainant is that the first revision petitioner was a subscriber
of the chitty conducted by the complainant and the second
revision petitioner stood as a guarantor for the said transaction.
Towards the payment of the balance amount due in the chitty
transaction, both the accused jointly issued a cheque for an
amount of Rs.8,12,363/- and when the said cheque presented for
encashment the same was returned as dishonoured for the
reason want of sufficient funds in the account maintained by the
accused. With the above allegation after complying with the
statutory requirement, a formal complaint was filed before the
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trial court wherein S.T.No.283/2007 was instituted. During the
trial of the case PWs.1 and 2 were examined from the side of the
complainant and Exts .P1 to P12 were produced and marked. No
evidence was adduced from the side of the defence either as oral
or documentary. After considering the evidence and materials
on record the trial court by its judgment dated 5.8.2008 in
S.T.No.283/2007, found that the accused are guilty under
Section 138 of the Negotiable Instruments Act and accordingly,
they were convicted and further sentenced to undergo
imprisonment till rising of court and to pay a sum of
Rs.4,50,000/-each as compensation and in default in paying the
compensation directed to undergo simple imprisonment for six
months each.
3. Aggrieved by the above order of conviction, sentence and
order of compensation, the revision petitioners/accused
preferred Crl.A.269/2008 before the Sessions Court, Thodupuzha
and by judgment dated 6.7.2008 the court of Additional Sessions
Judge/Special Judge for NDPS Act cases, Thodupuzha dismissed
the appeal, confirming the conviction, sentence and order to pay
compensation. It is the above judgments of the courts below
challenged in this revision petition.
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4. I have heard Mr.V.G.Arun, counsel appearing for the
revision petitioners. The learned counsel emphatically submitted
that out of the chitty transaction the entire amount were paid of
and inspite of the fact of repayment of the amount the cheque
which was obtained as a security misused by the complainant for
filing the present complaint.
5. I have gone through the judgments of the trial court as
well as lower appellate court. The materials and evidence on
record which are relied on by the trial court as well as the
appellate court are sufficient to hold the guilt of the revision
petitioners for which offence thus faced the trial.
6. In this case it is relevant to note that the revision
petitioners did not challenge the chitty transaction with the
complainant. It is the case of the complainant also that the first
revision petitioner was a subscriber of the chitty conducted by
the complainant company and the second revision petitioner,
who is none other than the wife of the first revision petitioner,
stood as a guarantor for the liability of the first revision
petitioner. Towards the discharge of the said liability, both the
revision petitioner as subscriber of the chitty and the second
revision petitioner as the guarantor for the liability of the first
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revision petitioner, jointly issued a cheque pertained to an
account jointly maintained by both the revision petitioners. Thus
on the basis of the evidence of the trial court as well as the
appellate court found that the complainant has established its
case against the accused/revision petitioners. Such findings are
not liable to be interfered in this revision proceedings since no
case is made out to arrive different finding.
7. When the revision petitioners/accused admitted the
transaction it is up to them to adduce evidence to substantiate
their contention whatsoever and thereby to rebut the
presumption which is available to the complainant under Section
118A and Section 139 of the Negotiable Instruments Act.
Admittedly, except the bare pleading, no evidence was adduced
by the accused/revision petitioners to substantiate their case. In
this juncture it is relevant to note that though the revision
petitioners have got an opportunity to dispute the claim of the
complainant by sending a proper reply to the lawyer notice, no
attempt was made to make use of such earlier opportunity to
challenge the claim of the complainant. Beside the above,
during the trial also, no evidence was adduced. Therefore, I find
no reason to interfere with the orders of the courts below.
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8. The learned counsel for the revision petitioners
submitted that the revision petitioners/accused who are
agriculturist are not in a position to raise the fund to comply with
the direction issued by the courts below and to make the
compensation. Admittedly, the transaction pertains to the period
2007 and the trial court judgment is dated 5.8.2008 and the
lower appellate court judgment is dated 6.7.2009. But so far no
amount is seen paid to the complainant by the revision
petitioners/accused. Under the above circumstances, six
months’ time as sought by the counsel for the revision petitioner
to make the payment cannot be granted. But considering the
particular facts and circumstances involved in the case, I am of
the view that two months’ time can be granted from today for
making the payments of compensation ordered by the court
below.
9. In the result this Crl. Revision Petition is disposed of
confirming the conviction, sentence and also the order for
payment of compensation. The revision petitioners are directed
to appear before the trial court on 8.4.2010 to receive the
sentence and to make the payment of compensation. If there is
any failure on the part of the revision petitioner to appear before
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the trial court as directed and to make the payment, the trial
court is free to take coercive steps to secure the presence of the
revision petitioners and to execute the sentence and also to takes
steps to realise the compensation as ordered.
V.K.Mohanan, Judge
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