IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2337 of 2009()
1. ABOOBACKER.P.P,AGED 38 YEARS,
... Petitioner
Vs
1. M/S.SHRIRAM INVESTMENTS LTD,CALICUT,
... Respondent
2. STATE OF KERALA REP:BY PUBLIC PROSECUTOR
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/07/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2337 of 2009
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Dated this the 23rd day of July, 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 it. Public Prosecutor
takes notice for respondent No.2.
2. This revision is in challenge of judgment of learned Additional
Sessions Judge, Fast Track (Adhoc-II), Kozhikode in Crl.Appeal No.954 of 2007
confirming conviction and sentence of petitioner for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner
faced trial in the court of learned Judicial First Class Magistrate-IV, Kozhikode in
C.C.No.332 of 2005. Case of respondent No.1 which is a private limited
company engaged in business of lease and hire purchase is that at the request
of petitioner a loan of Rs.2,50,000/- was sanctioned to him, he availed
Rs.1,10,000/- agreeing to repay the amount in instalments but defaulted
payment of instalments. At a time when Rs.68,000/- was due from petitioner he
issued Ext.P3, cheque dated 30.3.2005 for discharge of that debt. That cheque
was dishonoured as account was closed and since there is no sufficient fund in
the account as proved by Exts.P4 and P5. Service of statutory notice on
petitioner is proved by Exts.P6 to P8. Ext.P9 is the reply. PW1, authorised by
Ext.P1, power of attorney gave evidence on behalf of respondent No.1. He
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proved Ext.P10, hypothecation agreement executed by petitioner. Petitioner
contended that at the time of availing loan a signed blank cheque was obtained
by respondent No.1 which has been misused. Courts below found in favour of
due execution of the cheque. It is contended by learned counsel that due
execution of the cheque is not proved. It is also contended that what exactly the
amount actually due to respondent is not in evidence.
3. Section 139 of the Act provides for a presumption in favour of the
holder of the cheque that such holder received the cheque for the discharge, in
whole or in part of any debt or other liability. It is true, it is open to a drawer of
the cheque to dispute the liability as well as the quantum. In this case, petitioner
denied execution of the cheque as well as quantum. So far as execution of the
cheque is concerned, it is not disputed that Ext.P3 contained the signature of
the petitioner, is drawn on the account he had maintained with the bank and he
had given that cheque to respondent No.1 in connection with the transaction. It
is true that mere admission or proof of signature does not tantamount to
admission or proof of the instrument as such but it went a long way in proving
due execution of the cheque. Apart from suggesting that respondent No.1
obtained signed blank cheque at the time of transaction, there is nothing on
record to hold so. Nothing is brought out in the evidence of PW1 on behalf of
respondent No.1 to disbelieve his version regarding execution of the cheque.
Therefore, courts below are justified in holding in favour of due execution of the
cheque.
4. Then, presumption under Section 139 of the Act follows. It is then
Crl.R.P.No.2337/2009
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for petitioner to rebut that presumption by appropriate means. In this case,
petitioner has not produced any document to show the amount he allegedly paid
to respondent No.1. Assuming that he is not in possession of any such
document, he could have summoned such documents from the possession of
respondent No.1 which also has not been done. In other words, petitioner has
failed to rebut the presumption under Section 139 of the Act as to the passing of
the consideration as well as the extent of liability referred to in Ext.P3. In the
circumstances I do not find reason to interfere with the conviction of petitioner.
5. Learned magistrate sentenced petitioner to undergo simple
imprisonment for one month and directed payment of compensation of
Rs.68,000/- to respondent No.1. A default sentence of imprisonment for one
month was provided. Appellate court did not interfere with the conviction and
sentence. Learned counsel submitted that substantive sentence imposed is
excessive and requested that petitioner may be granted three months’ time to
deposit compensation. According to the learned counsel petitioner is unable to
raise the amount immediately on account of financial difficulties.
6. Having regard to the nature of offence and object of legislation, I
am satisfied that simple imprisonment till rising of the court is sufficient in the
ends of justice. There is no reason to interfere with the direction for payment of
compensation at the instance of petitioner. Considering the circumstances
stated by learned counsel, petitioner is granted three months’ time to deposit
compensation. In case of default, petitioner has to undergo simple
imprisonment for two months.
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Resultantly, this revision 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.
ii. Petitioner is granted three months’ time to deposit
compensation in the trial court as ordered by that court. In case of
failure, petitioner has to undergo simple imprisonment for two
months.
iii. 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 its counsel acknowledging receipt of compensation within
the above said period.
Petitioner shall appear in the trial court on 26.10.2009 to receive the sentence.
Execution of warrant if any against the petitioner will stand in abeyance till
26.10.2009.
THOMAS P.JOSEPH,
Judge.
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