IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 502 of 2001()
1. KABEER KHADER MUHAMMED
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.M.JOSHI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.GIRI
Dated :10/02/2009
O R D E R
V.GIRI, J
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Crl.R.P.502/2001
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Dated this the 10th day of February, 2009
ORDER
The accused in C.C.No.176/90 on the files of the
Chief Judicial Magistrate Court, Ernakulam, who was
prosecuted for an offence punishable under Section
138 of the Negotiable Instruments Act, is the
petitioner in this Revision petition. The accused had a
credit card facility in the Vijaya Bank, M.G.Road,
Ernakulam, and he was running a proprietary
concern under the name `Lords’. As per the credit
card scheme, the accused purchased materials and
obtained service from establishments. Thus, by
19.10.1989, Rs.3,64,453.87 was due to the
complainant. When the amount was demanded, the
accused issued Ext.P2 cheque dated 28.2.1990 for an
amount of Rs.20,000/- towards part payment.
Cheque was dishonoured, on presentation. A notice
demanding re-payment was issued. There was no re-
payment and hence the complaint.
Crl.R.P.502/2001
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2. That the cheque, on presentation, was dishonoured
due to insufficiency of funds in the account, was proved
by the testimony of PWs1 and 2 as also the documentary
evidence adduced on behalf of the complainant by
Exts.P1 to P6.
3. Curious contention was taken up on behalf of the
accused that the cheque was not presented for
collection before the Bank and therefore, the offence,
has not been made out. This was rejected by the trial
Court, accepting the case of the complainant that the
account in question maintained by the accused under
the name of `Lords’ was a current account and the
endorsement normally found on the reverse of the
cheque when it is negotiated through an SB account,
would not be found in the cheque in question. But it was
clearly proved that the cheque was presented for
collection and that the account did not have funds.
Therefore, the cheque could not be negotiated. No
reply was also given by the accused to the statutory
Crl.R.P.502/2001
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notice sent to him. The ingredients for completion of
the offence under Section 138 of the Act were therefore,
completely proved by the complainant.
4. It has come out that there were three other cases,
for which the accused was prosecuted for an offence
under Section 138 of the Act and the conviction and
sentence in all those cases have been affirmed by the
appellate Court and by this Court. The judgment in
Crl.R.P.503/2001 dated 9.12.2008 was made available
before me for perusal by the counsel for the
complainant. He further submits that the accused
seems to be absconding. This seems to be plausible
because a reading of the order dated 9.12.2008 in
Cr.R.P.No.503/2001 shows that the counsel was
constrained to note my instructions when the case was
called.
5. I have gone through the evidence adduced in the
case and the records as well. Ingredients for the offence
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punishable under Section 138 of the Act have been
completely proved. In these circumstances, the
conviction and sentence of the accused does not suffer
from any infirmity. I do not find any grounds to
interfere with the conviction.
6. But as regards the sentence, I prefer to follow the
modification effected by this Court in Crl.R.P.503/2001
whereby the substantive sentence of imprisonment for a
period of three months was modified as till the rising of
the Court with a further direction to pay a compensation
to the tune of Rs.25,000/-. I find that the cheque
amount involved in the said case is also Rs.25,000/-.
7. Accordingly, Criminal Revision Petition is allowed
in part. The conviction of the accused under Section
138 of the Negotiable Instruments Act is affirmed.
Substantive sentence awarded to the petitioner is
modified to simple imprisonment till the rising of the
Court. Accused is directed to deposit before the trial
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Court an amount of Rs.25,000/- as compensation within
two months from today. Accused shall appear before the
trial Court on 16.3.2009 for suffering the sentence of
imprisonment.
V.GIRI,
Judge
mrcs