IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3633 of 2009()
1. KURIAKOSE @ THANKACHAN, S/O.MATHAI,
... Petitioner
Vs
1. K.J.GIJO, S/O.JOY, AGED 38 YEARS,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.ABRAHAM MATHEW (VETTOOR)
For Respondent : No Appearance
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :20/11/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.3633 of 2009
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Dated this the 20th day of November, 2009
ORDER
The Judicial Magistrate of the First Class-II, Muvattupuzha
in C.C.No.214 of 2008 on his file, a complaint filed by the first
respondent, convicted the revision petitioner for offence under
Section 138 of the Negotiable Instruments Act and sentenced to
imprisonment till rising of the court and a fine of Rs.2,05,000/-,
which on realisation was ordered to be paid to the first
respondent as compensation. In Criminal Appeal No.345 of
2009, by judgment dated 19/8/2009 the amount of compensation
was reduced to Rupees two lakhs. In all other respects the
sentence of the trial court was sustained.
2. Aggrieved by the above conviction and sentence as
modified in appeal, this revision petition was filed. Having heard
the learned counsel for the revision petitioner and perusing the
judgments of the courts below, I find that the first respondent by
his evidence as PW.1 supported by Exts.P1 to P6 had succeeded
to establish that the revision petitioner owed a sum of Rupees
two lakhs to the first respondent and in discharge of that
Crl.R.P.No.3633 of 2009
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liability, Ext.P1 cheque dated 16/4/2004 for the said amount
drawn on State Bank of Travancore, Adimali Branch was issued
and that when Ext.P1 cheque was sent for collection it was
returned bounced for insufficiency of funds as evidenced by
Exts.P2 and P3 memos issued from the State Bank of
Travancore, Admimaly Branch and South Indian Bank Ltd,
Muvattupuzha branch respectively. Demanding discharge of the
liability, a lawyer notice dated 24/5/2004, copy of which was
marked as Ext.P4 was caused. Despite the acknowledgment of
the notice as evidenced by Ext.P6 dated 27/5/2004, the liability
was not discharged.
3. According to the learned counsel for the revision
petitioner, there is delay in sending notice. Ext.P3 memo is
dated 22/4/2004 and that the lawyer notice was caused only on
24/5/2004 and therefore there is delay in making the demand
and hence the prosecution is vitiated. It is pertinent to note that
PW.1 had deposed that he got Exts.P2 and P3 only on 29/4/2004.
That evidence of PW.1 is not challenged in cross-examination. In
the above circumstance, it had to be concluded that the date of
receipt of information from the bank regarding the return of the
Crl.R.P.No.3633 of 2009
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cheuqe as unpaid is 29/4/2004 and Ext.P4 notice issued on
24/5/2004 is within 30 days as provided in proviso(b) to Section
138. The courts below were correct in arriving a finding that the
notice was issued in time. I find no error, illegality or
impropriety in the said finding.
4. Though the revision petitioner have got a case that he
is a conductor in a bus and that a cheque was issued to the
owner of the bus and misusing that cheque prosecution was
launched, no evidence was adduced in support of such
contention. In the above circumstance, the evidence of PW.1
supported by the presumptions under Sections 118 and 139 of
the Negotiable Instruments Act remains uncontroverted. The
revision petitioner had not succeeded to rebut the legal
presumptions. There is compliance of required statutory
procedures. I find that the courts below had correctly analysed
the evidence and rightly arrived a conclusion of guilt. The
conviction is based on cogent evidence. No interference with the
conviction.
5. The courts below were very lenient in confining the
sentence to one till rising of the court and the appellate court to
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order compensation equal to the cheque amount. The sentence
is not at all harsh. If at all erred, it is only towards leniency.
There is no reason to interfere with the sentence.
In the result, the revision petition is dismissed. The
revision petitioner is granted six months time to pay the
compensation amount. Till then, the bail bond executed by him
shall remain in force.
P.S.GOPINATHAN, JUDGE
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