IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3035 of 2005()
1. E.T. BABU, S/O. CHANDHUKUTTY,
... Petitioner
Vs
1. C.V. RAJEEVAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.SANTHARAM.P
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/06/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.No. 3035 OF 2005
===========================
Dated this the 11th day of June,2010
ORDER
Petitioner was convicted and sentenced for
the offence under section 138 of Negotiable
Instruments Act in C.C.862/1999 by Judicial
First Class Magistrate’s Court, Koyilandy.
Petitioner challenged the conviction and
sentence before Sessions Court, Kozhikode in
Crl.A.375/2003. Learned Sessions Judge on
reappreciation of evidence confirmed the
conviction but modified the sentence to
imprisonment till the rising of court and a
compensation of Rs.90,000/- and in default
simple imprisonment for four months. Revision
is filed challenging the conviction and
sentence.
2. Learned counsel appearing for the
petitioner and the learned counsel appearing
Crl.R.P.3035/2005 2
for the first respondent were heard.
3. The argument of the learned counsel
appearing for the petitioner is that the complaint
was filed by the first respondent and subsequently
on 31.3.1999 he executed a power of attorney in
favour of DW1 authorising him to prosecute the case
and also to settle the same and later under Ext.P1
power of attorney dated 8.11.2002 PW1 was appointed
as power of attorney and it was PW1 who had given
evidence and the complainant was not examined and
the evidence of DW1 establish that when he was
prosecuting the case as the power of attorney
holder of the complainant, as authorized under the
power of attorney he settled the dispute with the
petitioner and received the entire amount and paid
it to the first respondent and therefore the
conviction is not sustainable. Learned counsel
argued that eventhough it was suggested to PW1 that
the matter has been settled with the original power
of attorney holder, first respondent was not
examined and in such circumstances even if the
conviction is to be confirmed, the compensation is
Crl.R.P.3035/2005 3
to be set aside.
4. Learned counsel for the first respondent
argued that the evidence of DW1 cannot be relied on
at all and was rightly disbelieved. It was pointed
out that PW1 had to be appointed the power of
attorney in the place of DW1, the original power
of attorney holder and in such circumstances the
evidence of DW1 was rightly rejected by the courts
below and there is no reason to interfere with the
conviction or the sentence.
5. Ext.P2 cheque is for Rs.90,000/-. The fact
that it was issued in the account maintained by the
petitioner and it was dishonoured for want of
sufficient funds and first respondent had complied
with all the statutory formalities are not in
dispute. Petitioner has no case that inspite of
notice demanding the amount covered by the
dishonoured cheque, he paid any amount. The
payment and the settlement alleged is much
subsequent to the filing of the complaint. Even if
it is taken that there was any payment subsequent
to the commission of the offence, the petitioner
Crl.R.P.3035/2005 4
cannot contend that he did not commit the offence.
Then the question is whether petitioner had paid
the amount covered by the dishonoured cheque to the
first respondent through the power of attorney
holder of the first respondent after institution of
the complaint. It is true that DW1 was the power
of attorney holder of the first respondent at that
time. According to petitioner, he has settled the
dispute with DW1. True, DW1 had given evidence in
support of the petitioner. The question is how far
his evidence is believable. If we are to believe
DW1, the amount borrowed was only Rs.10,000/- and
still cheque was issued for Rs.90,000/-. It is
improbable. It is more so when even after receipt
of the notice demanding Rs.90,000/-, petitioner did
not sent a reply. If the amount borrowed was
Rs.10,000/- and based on the dishonoured cheque
Rs.90,000/- is demanded, petitioner would
definitely sent a reply stating that the amount due
is not Rs.90,000/- but Rs.10,000/-. The fact that
DW1 was trying to help the petitioner is clear
from the way in which he has given evidence. On
Crl.R.P.3035/2005 5
going through the entire evidence, I find no reason
to interfere with the findings of the courts below
that Ext.P2 cheque was issued towards the repayment
of the amount borrowed and it was dishonoured for
want of sufficient funds. In such circumstances,
conviction of the petitioner for the offence under
section 138 of Negotiable Instruments Act is
perfectly legal.
6. Then the only question is regarding the
sentence. Learned Sessions Judge modified the
sentence to imprisonment till rising of court and a
compensation for the amount covered by the
dishonoured cheque. In such circumstances, I find
no reason to interfere with the sentence also.
Revision fails. It is dismissed. Petitioner
is directed to appear before the Judicial First
Class Magistrate’s Court on 13.7.2010. Judicial
First Class Magistrate is directed to execute the
sentence.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006