IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2564 of 2004()
1. B.M.MOIDEEN KUNHI S/O. PAKRU,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. A.M.ABDULLA S/O. C.A.MOHAMMAD SARANG,
For Petitioner :SRI.SAJEEV KUMAR K.GOPAL
For Respondent :SRI.T.B.SHAJIMON
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :02/07/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2564 of 2004
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Dated this the 2nd day of July, 2009
O R D E R
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Heard both sides.
2. This revision is in challenge of judgment of learned
Sessions Judge, Kasargod in Crl. Appeal No.257 of 2001 confirming
conviction of petitioner for offence punishable under Section 138 of
the Negotiable Instruments Act but modifying the sentence. Case
arose on a private complaint preferred by respondent No.2. He
alleged that petitioner borrowed Rs.75,000/- from him and for
repayment of that amount issued Exts.P2 and P3, cheques dated
25.11.1997 for Rs.25,000/- and dated 10.12.1997 for Rs.50,000/-. He
presented the cheques for encashment but the same were
dishonoured for insufficiency of funds. Respondent No.2 served the
statutory notice on petitioner intimating dishonour and demanding
payment. He neither replied nor repaid the amount. Power of
Attorney holder of respondent No.2 gave evidence as P.W.1. Exhibit
P1 is the Power of Attorney. Exhibits P4 and P6 are produced to prove
dishonour of the cheques for insufficiency of funds. Issue and service
of notice are proved by Exts.P7 and P8. There is no challenge before
me to the finding of the courts below regrading cause of dishonour
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and issue and service of notice. It is contended by learned counsel for
petitioner that there is no evidence to prove the alleged execution of
the cheques. According to petitioner cheques were stolen from his
office. Petitioner gave evidence as D.W.1 and proved Exts.D1 and
D2. Exhibit D1 is the copy of the complaint dated 10.12.1997
allegedly given by the petitioner to the Circle Inspector, Kasargod.
Exhibit D2 is copy of letter dated 10.12.1997 allegedly given by the
petitioner to the drawee bank requesting stoppage of payment. Courts
below were not impressed by the evidence of D.W.1 and Exts.D1 and
D2 and found in favour of due execution of the cheques. It is
contended by learned counsel that the finding is not correct.
3. It is not disputed that cheques are drawn on the account
maintained by the petitioner. Counsel contends that signature in the
cheques are disputed by the petitioner. I have gone through the
evidence of D.W.1, petitioner. He has not stated that cheques did not
contain his signature. It is seen from Exts.P4 and P5 that dishonour of
the cheques was merely for insufficiency of funds and not on account
of any difference in the signature with the specimen signature of the
account holder. Therefore that contention of the counsel cannot
stand. On the question whether Power of Attorney holder was
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competent to give evidence, Power of Attorney of respondent No.2
stated that petitioner borrowed Rs.75,000/- from respondent No.2 and
for repayment of that amount he issued the cheques. It is not
disputed as seen from the cross-examination of P.W.1 that he had
direct knowledge about the transaction and execution of the cheques.
There is no cross-examination of P.W.1 in that line. Hence there is no
reason to think that P.W.1 was not aware of the transaction or
execution of the cheques.
4. I shall refer to Exts.D1 and D2. They are only copies of the
complaint and letter stated to have been given by the petitioner to
the Circle Inspector and the drawee bank respectively. There is no
evidence to show that complaint or letter were actually given to the
Circle Inspector and drawee bank respectively. What is produced is
only copy of the complaint and letter stated to have been given by the
petitioner. It is seen from Exts.P4 and P5 that dishonour of the
cheques was not for the reason of payment being stopped. If Exhibit
D2 had reached the drawee bank in time, necessarily dishonour would
have been for the reason of payment being stopped. It is to be
remembered that cheques are dated 25.11.1997 and 10.12.1997
whereas Exts.D1 and D2 are dated 10.12.1997. In these
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circumstances courts below did not accept Exts.D1 and D2.
5. So far as evidence of petitioner as D.W.1 is concerned,
what he stated is that he had not issued any cheque and he had no
transaction with respondent No.2. As per Exts.D1 and D2, one
J.C.Thomas is stated to have broke open office of petitioner and
taken away valuable securities. In Ext.D1 there is no reference to any
cheque being taken by the said J.C.Thomas. What is stated is only that
valuable securities are taken away. Even if it is assumed that valuable
securities include the cheques in question I stated that there is no
evidence to show that the complaint was actually given to the Circle
Inspector. In the circumstances I am unable to act upon the evidence
of petitioner as D.W.1 and Exts.D1 and D2. There is evidence of
P.W.1, Power of Attorney holder regarding the transaction and due
execution of the cheques. Further fact to be noted is that in spite of
being served with statutory notice petitioner did not reply. In the
circumstances courts below are justified in rejecting the evidence of
D.W1. Courts below have considered the evidence and concluded that
petitioner issued the cheques in favour of respondent No.2 for the
discharge of a legally enforceable debt/liability. There is no reason
why this Court in revision should interfere with the concurrent finding
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which rested on a proper appreciation of the evidence let in by the
parties. Hence there is no reason to interfere with the conviction of
the petitioner.
6. Learned magistrate sentenced the petitioner to undergo
simple imprisonment for eight months. Appellate court modified the
sentence as simple imprisonment till rising of the court. Petitioner was
directed to pay compensation of Rs.75,000/- (Rupees Seventy five
thousand only) and in case of default to undergo simple imprisonment
for three months. There is no reason to interfere with the judgment of
the appellate court as well.
Revision fails. It is dismissed. Petitioner is granted one month
from this day to deposit the compensation in the trial court. He shall
appear in the trial court on 4.8.2009 to receive he sentence.
THOMAS P.JOSEPH, JUDGE.
vsv