IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1490 of 2001()
1. ABDUL NAZAR
... Petitioner
Vs
1. SIVARAMAN
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.JACOB SEBASTIAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/12/2008
O R D E R
THOMAS P.JOSEPH, J.
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CRL.R.P. No. 1490 of 2001
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Dated this the 3rd day of December, 2008
O R D E R
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First respondent and counsel are absent. There is no
representation also. Heard learned counsel for revision petitioner.
2. Following points arise for consideration:
(i) Whether the conviction of revision petitioner is
proper? And
(ii) Regarding legality of sentence
Point No.1:
3. According to the first respondent, revision petitioner
borrowed Rs.15,000/- from him undertaking to repay it within 15
days. He demanded repayment of the amount after one month and
then revision petitioner issued Exhibit P1, cheque dated 2.5.1995. He
presented the cheque for encashment but it was returned for
insufficiency of funds as proved by P.W.2 and Exhibits P2 and P6. First
respondent issued notice to the revision petitioner intimating
dishonour and demanding payment. Notice was returned refused.
Exhibit P3 is copy of notice. Exhibit P5 is postal receipt for sending
the notice by registered post. Exhibit P6 is notice returned refused.
Exhibit P6 contained the endorsement of the postman that it was
CRL. R.P. No.1490 of 2001
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refused and hence it is returned to the sender. That amounts to
deemed service of notice.
4. So far as due execution of the cheque is concerned,
contention raised by the revision petitioner is that at a time when he
was hard press for money, he approached one Viswanathan a friend of
him who was working in the forest office at Parambikulam.
Viswanathan agreed to arrange finance and accordingly he gave a
signed blank cheque to Viswanathan. Later he learned that
Viswanathan is no more.
5. First respondent gave evidence as P.W.1 and testified to
his case. Revision petitioner examined D.W.1. As per the version of
D.W.1, he got acquaintance with first respondent through
Viswanathan at the DCC office at Palakkad. He filled up Exhibit P1 in
the name of the first respondent as requested by the latter. Courts
below did not accept the version of D.W.1 and found the revision
petitioner guilty. According to counsel for revision petitioner,
evidence of D.W.1 was rejected without sufficient reason.
6. Though revision petitioner has a case that Viswanathan
promised to arrange finance to him and he handed over the cheque to
Viswanathan who is not alive. what D.W.1 stated is only that as
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requested by the first respondent he wrote the name of payee in
Exhibit P1. But he has not spoken about the case of the revision
petitioner. Even if it is assumed that D.W.1 had written the name of
the payee in Exhibit P1, that does not in any way improve the case of
the revision petitioner, for, first respondent has no case that name of
payee was written by the revision petitioner. Instead, he claimed that
revision petitioner signed the cheque in his presence. On going
through the evidence, I find nothing illegal or irregular in the courts
below refusing to place reliance on the evidence of D.W.1. That,
Exhibit P1 contain signature of revision petitioner is not disputed.
Normally one cannot expect a person to give a signed blank cheque to
anybody. Revision petitioner has not proved or even probabilised his
version that he handed over a signed blank cheque to Viswanathan.
That, he refused to accept the notice sent on behalf of the first
respondent eloquently indicate that he was aware of the claim being
made by the first respondent. In these circumstances courts below
were justified in placing reliance on evidence of the first respondent to
hold that the revision petitioner issued cheque in favour of the first
respondent to discharge the debt. Revision petitioner was not
successful in rebutting presumption under Section 139 of the Act.
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Conviction therefore cannot be assailed.
Point No.2:
7. Learned magistrate sentenced revision petitioner to pay
fine of Rs.30,000/- with a direction that out of the fine if realised
Rs.25,000/-, has to be given to the first respondent as compensation.
In appeal the learned Sessions Judge interfered with the sentence and
directed that revision petitioner shall pay fine of Rs.5,000/- and also
pay compensation of Rs.20,000/-. This in my view is illegal since
under Section 357(3) of the Code of Criminal Procedure compensation
can be ordered only when fine does not form part of the sentence. In
other words, there cannot be any direction for payment of
compensation along with a sentence of fine. Hence sentence as
modified by learned Sessions Judge is illegal and cannot be sustained.
Since learned magistrate was not competent to impose fine of
Rs.30,000/- as on the date of commission of offence, the case cannot
be remanded to the appellate court to award proper sentence.
Proper course is to remit the case to the trial court to award sentence
in accordance with law as in force on the date of commission of the
offence.
Resultantly, this revision petition is allowed in the following lines:
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(i) Revision petition to the extent it concerned the
conviction of revision petitioner is dismissed.
(ii) Sentence imposed on revision petitioner is set aside
and the case is remitted to the court of Judicial First
Class Magistrate, Chittur to award proper sentence
in the light of the observations made above.
(iii) Parties are directed to appear in the court of
Judicial First Class Magistrate, Chittur on 10.2.2009.
Bail bond shall stand cancelled.
Criminal Miscellaneous Petition No.6952 of 2001 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
THOMAS P.JOSEPH, J.
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CRL.R.P. NO.1490 OF 2001
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O R D E R
3RD DECEMBER, 2008