IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1598 of 2002()
1. M.K.JOSEPH, MULLAKKERICHIRAYIL HOUSE,
... Petitioner
Vs
1. K.J.MATHEW, KUNNAICKAL VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.GEORGE KARITHANAM VARGHESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.1598 of 2002
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Dated this the 17th day of August, 2009
O R D E R
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Heard both sides.
2. Learned counsel for petitioner reported on 3.8.2009 that
as per information received petitioner is no more. Thereon counsel for
petitioner was directed to ascertain and report whether petitioner is
alive or not. For report and steps case was posted to this day.
Learned counsel for petitioner submits that petitioner is no more. It is
also submitted that nobody has come forward to continue with the
revision petition. Since revision has been admitted, no question of
abatement would arise and this Court is required to dispose of the
revision on merit.
3. This revision is in challenge of judgment of learned
Additional Sessions Judge, Kottayam in Crl. Appeal No.152 of 1998
confirming conviction but modifying sentence of petitioner for offence
punishable under Section 138 of the Negotiable Instruments Act (for
short, “the Act”). According to respondent No.1, petitioner borrowed
Rs.30,000/- and for repayment of that amount petitioner issued
Ext.P1, cheque dated 12.3.1994. That cheque was dishonoured for
CRL. R.P. NO.1598 OF 2002
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insufficiency of funds as proved by Exts.P2 and P3. Statutory notice
issued to the petitioner in his official address was served on him as
seen from Exts.P4 and P5. Respondent No.1 gave evidence as P.W1
and testified to his case. Contention of petitioner was that his son
had borrowed Rs.30,000/- from respondent No.1 and given a signed
blank cheque belonging to him as security. That cheque has been
misused by respondent No.1. Courts below did not accept that
explanation of petitioner and found him guilty. Concurrent finding is
under challenge in this revision.
4. It is not disputed that Ext.P1 is signed by petitioner and
drawn on the account maintained by him. His contention is that he
had no transaction with respondent No.1 and instead his son had
borrowed Rs.30,000/- from respondent No1. Further contention is
that his son had handed over his signed blank cheque. Suggestion in
that line is denied by respondent No.1. Respondent No.1 asserted
that petitioner borrowed Rs.30,000/- from him and issued the cheque.
Petitioner did not adduce evidence or bring out circumstances to
prove or probabilise his contention. Courts below found no reason to
disbelieve the evidence of respondent No.1. It is seen from the
judgment of learned Additional Sessions Judge that in the appeal an
attempt was made by petitioner to summon respondent No.1 as a
witness. Learned Additional Sessions Judge rejected the request of
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petitioner holding that respondent No.1 cannot be summoned as a
witness on the side of petitioner. I have gone through the judgments
under challenge and find no reason to interfere with the concurrent
finding entered by the courts below regarding due execution of the
cheque. Petitioner was not able to rebut the presumption under
Sec.138 of the Act.
5. A further contention raised is that there was no proper
service of notice on petitioner. It is contented that failure of
respondent No.1 to produce copy of notice is fatal. Exhibits P4 and P5
show that in the official address of petitioner notice was served on
him. It is not disputed that during the relevant time petitioner was
working in that address. If petitioner has a case that notice issued to
him was not valid he could have very well produced the same since he
was in possession of the original. That having not been done
contention that notice issued to him was not valid cannot be
accepted.
6. What remained for consideration is whether sentence
awarded by the trial court as modified by the appellate court is
excessive. Learned magistrate sentenced petitioner to undergo
simple imprisonment for three months. Petitioner was directed to pay
fine of Rs.60,000/- and in default of payment to undergo
imprisonment for twenty days. Appellate court did not interfere with
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the substantive sentence. Sentence of fine was converted as
compensation of Rs.30,000/- but no default sentence was imposed.
Since petitioner is no more, sentence of imprisonment has become
unexecutable and in the circumstances there is no need to impose a
default sentence in case of non-payment of compensation But there
is no reason to interfere with the direction for payment of
compensation.
7. It is submitted by learned counsel for respondent No.1 that
this Court on 6.3.2003 directed petitioner to deposit Rs.15,000/- as a
condition for suspension of sentence. Counsel for petitioner was not
able to confirm whether there was any such deposit. It is directed
that since appellate court has directed payment of compensation to
respondent No.1 amount if any deposited by petitioner in any of the
courts below shall be paid to respondent No.1. It is made clear that it
is open to respondent No.1 to realise the rest of the compensation
payable if respondent No.1 is entitled to such a course as per the law.
Resultantly with the above direction regarding withdrawal of the
amount if any, in deposit this revision petition is dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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CRL. R.P. NO.1598 OF 2002
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O R D E R
17TH AUGUSUT, 2009