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Moidhu vs Dasan on 18 February, 2009

Kerala High Court
Moidhu vs Dasan on 18 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3904 of 2008()


1. MOIDHU
                      ...  Petitioner

                        Vs



1. DASAN
                       ...       Respondent

2. STATE OF KERALA, REP. BY

                For Petitioner  :SRI.PULIKKOOL ABUBACKER

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :18/02/2009

 O R D E R
                             V.RAMKUMAR, J.
                  .................................................
                      Crl.R.P. No. 3904 of 2008
                   ................................................
           Dated, this the 18th day of February, 2009.

                                   O R D E R

In this Revision Petition filed under Section 397 read with Sec.
401 Cr.P.C. the petitioner who was the accused in C.C. No. 494 of 2004
on the file of the J.F.C.M. I, Thrissur challenges the conviction entered
and the sentence passed against him for an offence punishable under
Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to
as ‘the Act’). The cheque amount was Rs. 2,65,000/-. The
fine/compensation ordered by the lower appellate court is Rs. 30,000/-.

2. I heard the learned counsel for the Revision Petitioner and
the learned Public Prosecutor.

3. The learned counsel appearing for the Revision Petitioner re-
iterated the contentions in support of the Revision. The courts below
have concurrently held that the cheque in question was drawn by the
petitioner in favour of the complainant, that the complainant had validly
complied with clauses (a) and (b) of the proviso to Section 138 of the Act
and that the Revision Petitioner/accused failed to make the payment
within 15 days of receipt of the statutory notice.

4. The learned counsel appearing for the revision petitioner
made the following submissions in support of the revision:-

The complaint was filed by Dasan through his wife as the power-
of-attorney holder. His wife was examined as P.W.1. In Ext.P1 notice
as well as in the complaint the specific allegation is that it was from the
complainant that the accused borrowed the amounts. But P.W.1 , the wife

Crl.R.P. 3904 of 2008 -:2:-

of the complainant would say that she gave the money on the
instructions of her husband. This was contrary to the averments in
Ext.P7 notice and the complaint. Ext.P7 statutory notice was returned
unserved with the endorsement that the addressee has left and his
present address was not known. Ext.D1 election identity card produced
by the revision petitioner to prove his correct address was discarded by
the courts below holding that it was issued after Exts. P1 and P2 cheques
were issued. Before the lower appellate court, the revision petitioner
had produced Ext.P2 photocopy of the relevant copies of his passport
issued in the year 1992 showing his correct address. The said
document has not been taken into account by the lower appellate court
while appreciating the petitioner’s contention that the statutory notice
was not given to him in the correct address. The revision petitioner
had denied the execution of Exts.P1 and P2 cheques. When the
signatures in Exts.P1 and P2 cheques have been disputed by him no
presumption is available to the complainant. The revision petitioner
had actually loss two cheque leaves while he was in Oman. Those
cheque leaves were misused by the complainant for lodging the case
against the petitioner.

5. I am afraid that I cannot agree with the above submissions.
The testimony of P.W.1 the wife of the complainant to the effect that she
gave the money to the accused on the instructions of her husband does
not seriously militate against the averments in Ext.P7 notice as also the
averments in the complaint. The payee under Exts. P1 and P2 cheques
are none other than complainant Dasan who is the husband of P.W.1. It
is true that Ext.P7 statutory notice was returned with the endorsement
that the addressee has left and his present address is not known. But
the very same address was shown in the complaint and process was

Crl.R.P. 3904 of 2008 -:3:-

issued by the learned Magistrate to the very same address. Even in the
appeal filed before the lower appellate court the address shown by the
revision petitioner was the very same address as was shown in the
complaint and Ext.P7 statutory notice. Hence, it is futile for him to
contend that the statutory notice was not issued to him in the correct
address. The complainant was entitled to the presumption regarding
due service. Hence, Exts. D1 and D2 documents produced by him before
the courts below are of no avail to him. It is easy to deny execution of
the cheque by disputing the signatures therein. Absolutely no
explanation has been offered by the revision petitioner as to how two of
his cheque leaves came into the hands of the complainant. According to
him he had lost two cheque leaves while he was in Oman. Admittedly,
he has not lodged any complaint before the police. No stop memo also
was issued by him to the drawee bank countermanding payment. Under
these circumstances, the conviction recorded by the courts below is
unassailable.

6. Both the courts have considered and rejected the defence set
up by the revision petitioner while entering the conviction. The said
conviction has been recorded after a careful evaluation of the oral and
documentary evidence. I do not find any error, illegality or impropriety
in the evidence so recorded concurrently by the courts below and the
same is hereby confirmed.

7. What now survives for consideration is the legality of the
sentence imposed on the revision petitioner. In the light of the recent
decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P.
Abdullakoya – 2008 (1) KLT 851 default sentence cannot be imposed for
the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C.
I am, therefore, inclined to modify the sentence to one of fine only.

Crl.R.P. 3904 of 2008 -:4:-

Accordingly, for the conviction under Section 138 of the Act the revision
petitioner is sentenced to pay a fine of Rs. 2,65,000/-. (Rupees two
lakh sixty five thousand only ). The said fine shall be paid as
compensation under Section 357 (1) Cr.P.C. The revision petitioner is
permitted either to deposit the said fine amount before the Court below
or directly pay the compensation to the complainant within six months
from today and produce a memo to that effect before the trial Court in
case of direct payment. If he fails to deposit or pay the said amount
within the aforementioned period he shall suffer simple imprisonment
for three months by way of default sentence.

In the result, this Revision is disposed of confirming the conviction
entered but modifying the sentence imposed on the revision petitioner.

Dated this the 18th day of February, 2009.

Sd/-V. RAMKUMAR, JUDGE.

/true copy/

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