IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 717 of 2001()
1. K.B.SHAJI
... Petitioner
Vs
1. P.T.VARGHESE
... Respondent
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :SRI.C.K.SAJEEV
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/09/2008
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P. No. 717 OF 2001
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Dated this the 17th day of September, 2008
O R D E R
Revision petitioner against whom concurrent finding of fact is
made by the courts below that he issued Ext.P1, cheque dated
31.05.97 for the discharge of debt to the tune of Rs.30,000/-, the
cheque was dishonoured for insufficiency of funds and that in spite of
the dishonour intimation and demand he did not pay the amount and
thereby committed the offence punishable under Section 138 of the
Negotiable Instruments Act and was sentenced to undergo simple
imprisonment for six months and payment of compensation for
Rs.24,000/-, has come up in revision.
2. Heard the learned counsel for the revision petitioner, 1st
respondent and the Public Prosecutor. The learned counsel
submitted that the concurrent finding entered by the courts below are
erroneous and at any rate, the sentence is excessive.
3. So far as the alleged execution of Ext.P1, cheque is
concerned, the 1st respondent has evidenced as PW1. According to
the revision petitioner, the cheque in question somehow happened to
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be in the custody of 1st respondent. Courts below considered the
evidence of 1st respondent in the light of the defence pleaded by the
revision petitioner and found in favour of the due execution of the
cheque. There is little reason to interfere with that finding.
4. Though notice of dishonour was issued to the revision
petitioner, it was returned as unclaimed. PW2, the postman was
examined to say that the notice was tendered to the revision
petitioner. When the notice is sent by registered post in the correct
address, in the normal course of the postal business that notice
would be delivered to the addressee. After all, the obligation of the
1st respondent is only to send the notice in the correct address which
he has done. The evidence of PW2 shows valid tender of notice to
the revision petitioner. In the facts and circumstances and in the
light of the evidence on record, the conviction of the revision
petitioner is unassailable.
5. Turning to the sentence awarded to the revision petitioner,
the learned counsel submitted that the imprisonment may be
avoided. He submitted that during the trial of the case Rs.6,000/-
was paid to the 1st respondent the receipt of which is acknowledged
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by the 1st respondent also and taking note of which, compensation
payable was limited to Rs.24,000/-, though the cheque was for
Rs.30,000/-. Learned counsel submitted that as per the order of this
court, Rs.15,000/- has been deposited in the trial court.
6. Considering the nature of the offence and the object of the
legislation, I am satisfied that simple imprisonment till the rising of
court is sufficient in the ends of justice. At the same time, the 1st
respondent has to be duly compensated. As pointed out by the
learned counsel for the 1st respondent, the transaction was on
31.05.97, and the 1st respondent initiated prosecution against the
revision petitioner in the year 1997. It was only in the year 1987 that
Rs.6,000/- was paid to the 1st respondent. Taking these aspects into
account, the revision petitioner has to pay compensation of
Rs.26,000/- to the 1st respondent.
The revision petition is therefore allowed in part in the following
terms:
i) The substantive sentence imposed on the revision
petitioner is modified as simple imprisonment till the
rising of the court.
ii) The revision Petitioner is directed to deposit in the trial
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court within two months from this day Rs.26,000/-
(Rs.Twenty six thousand only) for payment to the 1st
respondent as compensation, failing which he shall
undergo simple imprisonment for two months.
iii) The amount, if any, deposited by the revision petitioner in
the trial court as per the order of this court will be
adjusted in the compensation fixed hereby
iv) The revision petitioner shall surrender in the trial court on
22.10.08, to receive the sentence.
THOMAS P. JOSEPH, JUDGE
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