IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 767 of 2003()
1. BHADRAN, S/O. VIJAYAN VAIDYAN,
... Petitioner
Vs
1. P.A.CYRIL, PULIKKATHARA HOUSE,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.K.P.SREEKUMAR
For Respondent :SRI.JOY THATTIL ITTOOP
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.Nos.767 of 2003
330 of 2005
&
357 of 2005
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Dated this the 12th day of June, 2009.
ORDER
These revisions arise at the instance of the convicted accused in
C.C.Nos.405 of 1998, 425 of 1998 and 421 of 1998, respectively of the court of
learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
Since the parties are common in all these cases and the question involved are
also the same, these revisions are being disposed of by this common order.
2. These cases arose on private complaints preferred by respondent
No.1 alleging that petitioner borrowed a total sum of Rs.2,80,000/- on three
different occasions undertaking to repay the same within one month and for the
discharge of that liability, issued three cheques, marked as Ext.P1 in each case.
It is the further case of respondent No.1 that he presented those cheques for
encashment but the same were dishonoured for insufficiency of funds which is
proved by Exts.P2 and P3 in each case. On getting intimation about dishonour,
respondent No.1 issued statutory notice to the petitioner intimating dishonour
and demanding payment. Notices were served on the petitioner. Issue and
service of notices on the petitioner are proved by Exts.P4 and P5 in each
case. Respondent No.1 gave evidence in each case as PW1 and testified to his
case. According to him, petitioner was his close friend and for business
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purposes of the petitioner, he gave loan of Rs.2,80,000/-. It is also his case that
money arranged for the marriage of his sister was advanced to the petitioner by
way of loan believing the undertaking of petitioner that he would return the
amount within one month. Petitioner claimed that some time back, in connection
with certain income tax purposes he happened to give signed blank cheques to
respondent No.1 as security. In C.C.No.405 of 1998 from which
Crl.R.P.No.767 of 2003 arises petitioner proved Exts.D1 to D7 which are the
copy of plaint in a connected civil suit and copy of complaints filed by
respondent No.1 against him in the two other cases. In C.C.Nos.425 of 1998
and 421 of 1998 from which Crl.R.P.Nos.330 of 2005 and 357 of 2005 arise
petitioner examined the manager of drawee bank as DW1. In C.C.No.425 of
1998, petitioner proved Exts.D1 to D10. Ext.D1 is the copy of ledger extract and
Exts.D2 to D7 are documents similar to Exts.D2 to D6 marked in C.C.No.405 of
1998. In C.C.No.421 of 1998 Exts.D1 to D10 are marked. Ext.D1 is the copy of
ledger extract and Exts.D2 to D10 are copy of plaint or complaint preferred by
respondent No.1 against the petitioner in the two other cases. Learned
magistrate was not inclined to accept the case of the petitioner, found that he
issued the cheques for discharge of a legally enforceable debt/liability, failed to
rebut the presumption under Section 139 of the Negotiable Instruments Act (for
short, “the Act”) and accordingly convicted him for offence punishable under
Section 138 of the Act. Petitioner was sentenced to undergo simple
imprisonment and payment of fine. It was directed that portion of the fine if
Crl.R.P.Nos.767/2003
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realized will be paid to respondent No.1 as compensation under Section 357(1)
of the Code of Criminal Procedure (for short, “the Code”). Conviction in all the
cases were confirmed by the appellate court. Sentence awarded in C.C.No.405
of 1998 was also confirmed but the substantive sentence awarded in
C.C.Nos.425 of 1998 and 421 of 1998 were modified as simple imprisonment till
rising of the court. Petitioner is aggrieved and has come up in revision.
3. It is submitted by learned counsel for petitioner that petitioner is
prepared to clear the liability within three months and requested for such time.
Counsel submitted that in the connected cases, petitioner has been given three
months’ time to deposit the fine. Learned counsel for respondent No.1
submitted that the transaction was way back in the year, 1997 and that the
amount arranged for the marriage of sister of respondent No.1 was given to the
petitioner by way of hand loan on account of the thick friendship respondent
No.1 had with the petitioner. It is also submitted by learned counsel that
marriage of sister of respondent No.1 had to be postponed since the petitioner
did not repay the amount, within one month as agreed. According to the
learned counsel, petitioner has already enjoyed the benefit of the loan for the
last 12 years.
4. So far conviction of the petitioner is concerned, it is seen that
petitioner had not set up any definite case as to how the cheques signed by him
and drawn on his account reached respondent No.1. He only stated that in
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connection with income tax purposes blank cheques were given to respondent
No.1. Being an accused in a criminal case, it is open to the petitioner to take
inconsistent and contradictory pleas. But when evidence of respondent No.1,
that petitioner has no consistent case would assume relevance. Petitioner has
no materials to prove that the transaction between the petitioner and
respondent No.1 was much prior to 1997 or that signed blank cheques were
given as security. Petitioner proved Ext.D1, copy of ledger extract and
examined DW1 in C.C.Nos.425 of 1998 and 421 of 1998. That evidence is only
to the effect that cheques which bore numbers prior to Ext.P1 marked in these
cases were encashed much before the date of Ext.P1. For that reason alone, it
cannot be said that cheques were given as security as claimed by the petitioner.
It is pertinent to note that inspite of being served with notice of dishonour,
petitioner did not reply to such notice. It is seen that notices mentioned fairly
large amounts and demand was made for payment of such amount within
fifteen days but petitioner did not respond to it. Nothing was brought out to
disbelieve the evidence of PW1. In these circumstances I do not find reason
to interfere with the concurrent finding of the courts below as to the due
execution of the cheques in question. Petitioner was not successful in rebutting
the presumption under Section 139 of the Act.
5. So far as substantive sentence awarded in these cases is
concerned, appellate court has modified it as simple imprisonment till rising of
the court in C.C.Nos.425 of 1998 and 421 of 1998. That called for no
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interference. In C.C.No.405 of 1998 petitioner was sentenced to undergo
simple imprisonment for one month and that was confirmed by the appellate
court. Considering the nature of the offence and also taking into account the fact
that in the connected cases appellate court has modified the sentence as simple
imprisonment till rising of the court, I am satisfied that similar punishment is
sufficient in C.C.No.405 of 1998 also. Hence substantive sentence awarded in
C.C.No.405 of 1998 is modified as simple imprisonment till rising of the court.
6. Second part of the sentence is for payment of fine. Learned
Additional Chief Judicial Magistrate taking into account the fact that cheques
were issued in the year 1997, and the amount covered by the cheques has
imposed appropriate amount as fine and directed that portion of the fine if
realised will be given to respondent No.1 as compensation. Learned counsel for
respondent No.1 requests that fine imposed by the learned Chief Judicial
Magistrate may be converted as compensation payable to respondent No.1
directly. Section 357(4) of the Code permits the High Court in revision to
award compensation. In the circumstances, fine awarded by learned Chief
Judicial Magistrate is converted as compensation. In default of payment of
compensation petitioner has to undergo the same default sentence learned
Chief Judicial Magistrate has imposed for non-payment of fine. On the question
whether the petitioner should be granted three months’ time to deposit the
compensation, it is conceded by learned counsel for respondent No.1 also that
in other connected cases, petitioner had already deposited the fine and that
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amount has been received by respondent No.1. In the circumstances, I am
inclined to grant three months’ time to the petitioner to deposit the compensation
in the trial court.
Resultantly, these revision petitions are disposed of in the following
lines:
A. Crl.R.P.No.767 of 2003
i. Substantive sentence awarded to the petitioner is
modified as simple imprisonment till rising of the court.
ii. Sentence of fine is set aside. Petitioner is directed
to deposit in the trial court for payment to respondent No.1 Rs.2,05,000/-
(Rupees Two lakhs and five thousand only) as compensation within three
months from this day failing which he shall undergo simple imprisonment
for two months.
B. Crl.R.P.No.330 of 2005
i. Substantive sentence awarded to the petitioner by the
appellate court is confirmed.
ii. Sentence of fine is set aside. Petitioner is directed to deposit in
the trial court Rs.50,000/- (Rupees fifty thousand only) as compensation
for payment to respondent No.1 under Section 357(3) of the Code.
Petitioner shall deposit that amount in the trial court within three months
from this day failing which he shall undergo simple imprisonment for two
months.
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C. Crl.R.P.No.357 of 2005
i. Substantive sentence awarded to the
petitioner by the appellate court is confirmed.
ii. Sentence of fine is set aside. Petitioner is directed to
deposit in the trial court Rs.50,000/- (Rupees Fifty thousand only) as
compensation for payment to respondent No.1 under Section 357(3) of
the Code. Petitioner is directed to deposit that amount in the trial court
within three months from this day failing which he shall undergo simple
imprisonment for two months.
D. The default sentence provided for non payment of
compensation shall run consecutively.
E. If petitioner has already deposited any amount in these
cases in any of the courts below, that amount will be adjusted in the
compensation payable in the respective cases. Respondent No.1 is
permitted to withdraw such amount if any deposited in any of the courts
below.
F. It is made clear that it will be sufficient compliance of
direction for deposit of compensation if petitioner paid the amount of
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 the compensation within the said
period of three months.
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G. Petitioner shall appear in the trial court on 15.9.2009 to
receive the sentence.
Crl.M.A.Nos.2784 of 2003 in Crl.R.P.No.767 of 2003, 2205 of 2005
in Crl.R.P.No.330 of 2005 and 2297 of 2005 in Crl.R.P.No.357 of 2005
will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
Crl.R.P.Nos.767/2003
& connected cases.
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Thomas P.Joseph, J.
Crl.R.P.Nos.767 of 2003,
330 & 357 of 2005.
ORDER
12th June, 2009.