IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2029 of 2009()
1. JOMON JACOB PICHAPPILLIL HOUSE,
... Petitioner
Vs
1. THE STATE OF KERALA- REP. BY THE
... Respondent
2. SUNNY S/O AUGUSTINE, POOVANTHURUTHIL
For Petitioner :SRI.SOJAN MICHEAL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2029 of 2009
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Dated this the 24th day of June, 2009.
ORDER
Public Prosecutor takes notice for respondent No.1. Notice to respondent
No.2 is dispensed with in view of the order I am proposing to make in this
revision which is not prejudicial to him
2. This revision is in challenge of judgment of learned Additional
Sessions Judge, Thodupuzha in Cr.Appeal No.32 of 2008 confirming conviction
of the petitioner for offence punishable under Section 138 of the Negotiable
Instruments Act (for short, “the Act”), sentence and direction for payment of
compensation. Case arose on a private complaint preferred by respondent
No.2. Case is that petitioner borrowed Rs.50,000/- from him on 30.8.1999
agreeing to repay the same within one month and on his demanding repayment
on 30.9.1999, petitioner issued Ext.P1, cheque for repayment of said amount.
That cheque was dishonoured for insufficiency of funds. On getting information
about dishonour respondent No.2 issued notice to petitioner on 3.12.1999.
Notice was returned with the endorsement `unclaimed’. Thereon respondent
No.2 preferred complaint. Ext.P1 is the cheque in dispute. Its dishonour for the
above said reason and intimation to respondent No.2 is proved by Exts.P2 and
P3. Ext.P4 is office copy of notice issued to the petitioner intimating dishonour
and demanding payment of the amount. Ext.P5 is the notice returned
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unclaimed. Respondent No.2 gave evidence as PW1 and testified to his case.
Petitioner gave evidence as DW1 and stated that he borrowed Rs.15,000/-
from respondent No.2 on 3.1.1998 and gave three signed blank cheques as
security. Making use of one of those cheques one Johnson preferred complaint
against petitioner as C.C.No.168 of 1999 (Ext.D1 is the certified copy of that
complaint). Later, there was a settlement between petitioner and respondent
No.2 at Kothamangalam in the presence of one Mathai Mathew and as per
settlement the said Mathai Mathew paid Rs.32,000/- to respondent No.2. When
petitioner demanded the cheque to be returned, respondent No.2 offered to
hand over the cheque to him at Thodupuzha. But that was not done. He
contested C.C.No.168 of 1999 and got acquittal. Ext.D2 is the copy of
judgment. Petitioner therefore contended that no amount is due to respondent
No.2.
3. It is true that petitioner produced Exts.D1 and D2 which
concerned a case instituted against him by one Johnson. It is also true that
petitioner got acquittal in that case. But, petitioner was not able to prove by
reliable evidence the connectiing link between the case filed by Johnson and
present case. Petitioner did not examine Mathai Mathew who is said to have
mediated the dispute and paid Rs.32,000/- in full and final settlement. Instead
what is available is only the interested version of petitioner as DW1. Mere fact
that petitioner has given evidence on oath by itself is not sufficient to discard the
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evidence of respondent No.2. Respondent No.2 has produced a negotiable
instrument which created liability on petitioner. Atleast when petitioner got
summons in C.C.No.168 of 1999,he would have, if his version was true,
claimed return of the cheque from respondent No.2 by way of notice. That also
was not done. On the other hand Ext.P5 shows that notice to him on behalf of
respondent No.2 was returned unclaimed. That means petitioner was aware of
the claim being made by respondent No.2. Nothing is brought out to disbelive
the evidence of respondent No.2. Courts below have considered these
circumstances and concluded in favour of the case pleaded by respondent No.2.
That finding being on an appreciation of evidence, there is little reason to
interfere in revision. Hence conviction of petitioner needs no interference.
4. While directing petitioner to pay Rs.50,000/- as compensation,
learned magistrate sentenced him to undergo simple imprisonment for six
months but no default sentence was provided for non-payment of
compensation. It is within the power of court to impose default sentence in case
compensation awarded is not paid. Learned counsel submitted that sentence
imposed is excessive. Counsel requested that one month’s time may be given
to the petitioner to deposit compensation in the trial court.
5. Having regard to the nature of offence and object of legislation I am
inclined to think that simple imprisonment till rising of the court is sufficient in the
ends of justice. There is however no reason to interfere with direction for
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payment of compensation. Petitioner can be granted one month’s time to
deposit compensation. Petitioner however has to undergo simple imprisonment
for three months in case he defaulted payment of compensation.
Resultantly, this revision is allowed in part to the following extent:
i. Substantive sentence awarded to the petitioner by
the learned magistrate is modified as simple imprisonment till rising of court.
ii. Petitioner is granted one month’s time to deposit in
the trial court Rs.50,000/- (Rupees fifty thousand only) for payment to
respondent No.2 as compensation. In case of default, petitioner shall undergo
simple imprisonment for three months
iii. It is made clear that it will be sufficient compliance of
direction for payment of compensation if petitioner paid the amount of
compensation to respondent No.2 through his counsel in the trial court and
respondent No.2 filed a statement in the trial court through his counsel
acknowledging receipt of compensation within the said period of one month.
iv. Petitioner shall appear in the trial court on 27.7.2009
to receive the sentence.
Execution of warrant if any against the petitioner will stand in abeyance
till 27.7.2009.
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Crl.M.A.No.6092 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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