C.M.Muhammedkutty vs N.Murugan on 7 July, 2009

Kerala High Court
C.M.Muhammedkutty vs N.Murugan on 7 July, 2009




Crl.Rev.Pet.No. 2179 of 2009()

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.JACOB SEBASTIAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :07/07/2009

 O R D E R
                            THOMAS P. JOSEPH, J.
                            Crl.R.P.No.2179 of 2009
                     Dated this the 7th day of July, 2009.


Notice to respondent No.1 is dispensed with in view of the order I am

proposing to pass in the revision and which is not prejudicial to him. Public

Prosecutor takes notice for respondent No.2.

2. This revision is in challenge of judgment of learned Additional

Sessions Judge, Adhoc Court-I, Palakkad in Crl.Appeal No.677 of 2007

confirming conviction but modifying sentence of petitioner for offence punishable

under Section 138 of the Negotiable Instruments Act (for short, “the Act”).

According to respondent No.1, petitioner borrowed Rs.1,00,000/- from him and

for discharge of that liability issued cheque (Ext.P1) dated 3.11.2006. That

cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3.

Respondent No.1 issued statutory notice to the petitioner intimating dishonour

and demanding payment of the amount. Issue and service of notice are proved

by Ext.P4 series. Petitioner sent Ext.P5, reply. Finding of the courts below

regarding cause of dishonour and service of statutory notice are not challenged.

Challenge is regarding the finding as to execution of the cheque.

3. Contention raised by the petitioner is that he had borrowed only

Rs.50,000/- from respondent No.1 and had agreed to repay the same in daily

instalments. He paid the amount upto the 74th instalment but could not pay the



balance amount. Later he paid the balance amount but respondent No.1

insisted that he must pay Rs.25,000/- by way of interest. That, he could not

oblige. Signed blank cheque given at the time of transaction was misused.

Respondent No.1 denied that suggestion. He claimed that petitioner borrowed

Rupees one lakh and issued the cheque for repayment of that amount. Further

contention of respondent No.1 is that petitioner had not repaid any amount.

Regarding the circumstances pleaded by petitioner, what is available is only

the reply (Ext.P5) sent by him and suggestion put to respondent No.1 when the

latter was in the box which he denied. It is admitted that petitioner had

transaction with respondent No.1 and that it was in connection with that

transaction that petitioner gave the cheque to respondent No.1. He was not

able to prove or probabilise the plea raised by him. Courts below after

appreciation of evidence correctly found that petitioner issued the cheque for

discharge of a legally enforceable debt/liability. I do not find reason to interfere

with that finding.

4. Learned magistrate sentenced the petitioner to undergo simple

imprisonment for six months. He was directed to pay compensation of

Rs.1,00,000/- to respondent No.1 and in default of payment to undergo simple

imprisonment for two months. Appellate court while retaining the direction for

payment of compensation and default sentence modified the substantive

sentence as simple imprisonment till rising of the court. I do not find reason to

interfere with the sentence as modified by the appellate court or the direction for

payment of compensation and the default sentence as confirmed by that court.



5. Learned counsel requested that petitioner may be granted six

months’ time to deposit the compensation. He stated that petitioner is unable to

raise the amount immediately. Having regard to the circumstances stated by

learned counsel and considering the amount involved, I am inclined to grant four

months’ time to the petitioner to pay/deposit compensation.

Resultantly, this revision petition fails. It is dismissed. Petitioner is

granted four months’ time from today to deposit compensation in the trial court.

It is made clear that it will be sufficient compliance of the direction for deposit of

compensation 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 four months. Petitioner shall appear in the trial court on 9.11.2009 to

receive the sentence. Execution of warrant if any against the petitioner will

stand in abeyance till 9.11.2009.



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