IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 2179 of 2009() 1. C.M.MUHAMMEDKUTTY, ... Petitioner Vs 1. N.MURUGAN, S/O.LATE NADARAJATHARAKAN, ... Respondent 2. STATE OF KERALA, 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. ORDER
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.