IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2101 of 2009()
1. BINOY MATHEW,
... Petitioner
Vs
1. P.H.HAMEED,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.JOICE GEORGE
For Respondent : No Appearance
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.2101 of 2009
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Dated this the 2nd day of July, 2009
O R D E R
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This revision is in challenge of judgment of learned Sessions
Judge, Thodupuzha in Crl.Appeal No.317 of 2007 confirming conviction
and sentence of petitioner for offence punishable under Section 138 of
the Negotiable Instruments Act (for short, “the Act”).
2. Respondent No.1 preferred a private complaint. His case is
that he is engaged in timber business and petitioner purchased
timber from him in August, 2004. For the sum of Rs.1,90,000/- due to
him petitioner issued four cheques (Ext.P1 series). Those cheques
were dishonoured for insufficiency of funds as proved by Ext.P2
series. Respondent No.1 issued notice to the petitioner intimating
dishonour and demanding payment. Issue and service of notice are
proved by Exts.P3 to P5 series. Respondent No.1 gave evidence as
P.W.1 regarding the transaction and execution of the cheques.
According to petitioner he has not purchased any timber from
respondent No.1. His former Manager, Naveen (D.W.1) stealthily took
the cheques along with other documents from his office and those
cheques are misused. D.W.1 admitted that he had been working as
Manager of petitioner but denied that the cheques and other
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documents were taken by him from the office of petitioner. He
claimed that he saw respondent No.1 for the first time when he was
summoned to the office of Deputy Superintendent of Police (in
connection with the complaint preferred by petitioner). Courts below
were not impressed by the contention raised by petitioner, accepted
the evidence of respondent No.1 and found the petitioner guilty.
Challenge in this revision is only regarding execution of the cheques.
It is contended by learned counsel for petitioner that finding of the
courts below in that regard is not correct.
3. It is not disputed by petitioner that Ext.P1 series are
signed by him and drawn on the account maintained by him.
According to him, he had no transaction with respondent No.1 at a
time when D.W.1 was working as his Manager, he stealthily got the
cheques and handed over the same to respondent No.1. D.W.1 has
denied that. There is no evidence to show that respondent No.1
stealthily got custody of the cheques (Ext.P1 series). Petitioner, it is
not disputed is a business man. ln spite of signed cheques and other
documents being allegedly stolen from his office he has not intimated
his bank about that and requested stoppage of payment as per those
cheques. He did not also put such a contention to respondent No.1
when the latter served notice of dishonour on him and he was called
upon to make payment. In the circumstances, contention raised by
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petitioner regarding his missing of cheques has only to be considered
as the result of an afterthought. Nothing is brought out to disbelieve
the evidence of respondent No.1 regarding transaction and execution
of the cheques. Courts below have assessed the evidence let in and
found in favour of due execution of the cheque. There is no reason to
interfere with that finding.
4. Learned magistrate sentenced petitioner to undergo simple
imprisonment for three months and directed him to pay
Rs.2,05,000/- as compensation. In default of payment, sentence of
simple imprisonment for three months also was provided. Appellate
court did not interfere with either conviction or sentence. On a
consideration of the circumstances of the case, nature of the offence
and object of legislation I am satisfied that simple imprisonment till
rising of the court will be sufficient in the ends of justice. There is no
reason to interfere with the direction for payment of compensation and
the default sentence provided.
5. Counsel requested four months’ time to deposit the fine
in the trial court. Counsel submits that petitioner is unable to raise
the amount immediately. Having regard to the circumstances stated
by learned counsel I am inclined to grant three months’ time to the
petitioner to deposit compensation in the trial court.
Resultantly, this revision is allowed in part to the following
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extent:
(i) Substantive sentence is modified as
simple imprisonment till rising of the court.
(ii) Petitioner is granted three months’
time from this day to deposit the compensation
as ordered by the trial court.
(iii) It is made clear that it shall be
sufficient compliance of condition (ii) if
petitioner paid the 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 compensation within the said period
of three months.
Petitioner shall appear in the trial court on 5.9.2009 to receive
the sentence.
THOMAS P.JOSEPH, JUDGE.
vsv