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E.T. Babu vs C.V. Rajeevan on 11 June, 2010

Kerala High Court
E.T. Babu vs C.V. Rajeevan on 11 June, 2010
       

  

  

 
 
  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.
          ===========================
          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.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006

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