IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2776 of 2009()
1. HABEEB, S/O.MUKKRI IBRAHIM, AGED
... Petitioner
Vs
1. SAYED THAHA,S/O.SAYEED HADI THANGAL,
... Respondent
2. STATE OF KERALA REP.BY PUBLIC
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :26/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.2776 of 2009
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Dated this 26th day of August 2009
ORDER
Respondent No.1 preferred a complaint in the court of learned
Judicial Magistrate of First Class-2 (Additional Munsif), Kasaragod for
offence punishable under section 138 of the Negotiable Instruments
Act. His case is that petitioner owed Rs.Four Lakhs from him and for
discharge of that liability issued Ext.P1, cheque dated 27-02-2006.
That cheque was dishonoured for insufficiency of funds. Statutory
notice was sent in his residential and official address. Notice issued in
residential address was returned unclaimed. Notice issued in the office
address was served. Petitioner did not make the payment. Hence the
complaint. Learned magistrate took the complaint on file as C.C.No.60
of 2007. Respondent No.1 gave evidence as PW1 and proved Exts.P1
to P5. Ext.P1 is the aforesaid cheque. Ext.P2 is the memo to prove
dishonour of cheque for insufficiency of funds. Service of notice is
proved by Ext.P4. Return of notice in residential address is proved by
Ext.P5. Petitioner contended and stated as DW1 that he had no
transaction with respondent No.1. Instead, he had business with one
Mohammed. There was some dispute between himself and said
Mohammed. That dispute was mediated by respondent No.1 and
settled for Rs.Three Lakhs. At that time petitioner gave Ext.P1, cheque
to respondent No.1 on condition that on his paying the amount to
Crl.R.P.No.2776 of 2009 2
Mohammed the cheque will be returned to him. Petitioner gave
Rs.2,84,000/- to said Mohammed but respondent No.1 did not returned
the cheque and instead, misused it. Courts below were not impressed
by that explanation of petitioner and found him guilty. That finding is
under challenge in this revision.
2. Ext.P1, it is admitted and proved contained signature of
petitioner. It is also not disputed that the cheque is drawn on the
account maintained by him. Though admission of signature does not
amount to admission or proof of execution of the instrument, that gives
a long way in proving due execution. In this case evidence is given by
respondent No.1 regarding transaction and execution of the cheque.
On the other hand petitioner has given evidence as DW1 as to in what
other manner the cheque came to the custody of respondent No.1.
But he has not examined the said Mohammed. There is no reliable
evidence to show that there was any dispute between Mohammed and
petitioner as alleged and that as part of that settlement Ext.P1 came to
the hands of respondent No.1. A further fact to be noted is that though
petitioner was served with the notice, he did not reply to it. If actually
no amount was due from him to respondent No.1, he would have
replied to the notice served on him. There is no acceptable
explanation for not replying to the statutory notice. Courts below in
the circumstances found in favour of respondent No.1. That finding
Crl.R.P.No.2776 of 2009 3
does not call for any interference in the revision.
3. While confirming the direction for payment of
compensation and default sentence appellate court had modified the
substantive sentence as simple imprisonment for fifteen days. It is
contended by learned counsel that substantive sentence imposed is
excessive. Learned counsel has also requested six months’ time for
petitioner to deposit compensation since according to learned counsel,
petitioner is unable to raise the amount immediately on account of
financial difficulties. Having regard to the nature of offence I am
satisfied that simple imprisonment till rising of the court is sufficient in
the ends of justice. There is however no reason to interfere with the
direction for payment of compensation or the default sentence at the
instance of petitioner. Considering the difficulties of petitioner stated
by learned counsel petitioner is granted time till 15-01-2010 to deposit
compensation.
Resultantly this revision petition is allowed in part to the
following extent:
1. Substantive sentence awarded to the petitioner is modified as
simple imprisonment till rising of the court.
2. Petitioner is granted time till 15-01-2010 to deposit the
compensation.
3. It is made clear that it will be sufficient compliance of the direction
Crl.R.P.No.2776 of 2009 4
for deposit of compensation if petitioner paid 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 period
aforesaid.
4. Petitioner shall appear in the trial court on 18-01-2010 to receive
the sentence. Execution of warrant if any against the petitioner
will stand in abeyance till 18-01-2010.
THOMAS P JOSEPH, JUDGE
Sbna/