IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 605 of 2009()
1. P.CHANDRA BABU, S/O.PAPPU,
... Petitioner
Vs
1. UNNI, S/O.APPU, VAZHAVILAKATHU VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.R.GOPAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :26/05/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.605 of 2009
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Dated this the 26th day of May, 2009
O R D E R
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Notice to respondent No.1 is dispensed with in view of the order I
am proposing to pass in the revision which is not prejudicial to
respondent No.1.
2. Judgment of learned Sessions Judge, Thiruvananthapuram
in Crl.Appeal No.830 of 2007 confirming conviction of the petitioner
for offence punishable under Section 138 of the Negotiable
Instruments Act (for short, “the Act”) but modifying the substantive
sentence is under challenge in this revision.
3. Case is that to discharge liability to the tune of Rs.75,000/-
petitioner issued Ext.P1, cheque dated 7.4.2002 which on
presentation for encashment was returned on 10.7.2002 for
insufficiency of funds. Respondent No.1 gave notice of dishonour and
demanded payment of the amount. Though notice was served on the
petitioner, he did not respond, either by way of a reply or by
compliance. Hence the complaint. Respondent No.1 gave evidence as
P.W.1 and proved Exts.P1 to P7. Dishonour of the cheque for above
said reason is proved by Exts.P2 and P3. Issue and service of notice
are proved by Exts.P4 to P6. Obviously to prove that respondent No.1
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had sufficient funds to advance the sum of Rs.75,000/- to the
petitioner, the former produced Ext.P7, certified copy of a sale deed
executed by his father. According to the petitioner, he had no
transaction with respondent No.1. He examined D.Ws.1 to 4 to show
that respondent No.1 had no sufficient funds with him to advance
Rs.75,000/-. Exhibit D1 was marked on the side of the petitioner.
Courts below found, accepting the case of respondent No.1 that
petitioner issued the cheque for the discharge of the legally
enforceable debt/liability and convicted the petitioner for the offence
as aforesaid. It is contended by the learned counsel that due
execution of the cheque is not proved and that at any rate the
presumption under Sec.139 of the Act is rebutted. It is also contended
that notice issued is not valid and hence conviction is vitiated.
4. As to the due execution of cheque, respondent No.1 has
given evidence as P.W.1. He claimed that petitioner borrowed
Rs.75,000/- from him and issued the cheque. It is admitted by the
petitioner also that Ext.P1 contained his signature and that it is drawn
on the account maintained by him. Respondent No.1, when examined
as P.W.1 stated that the sum of Rs.75,000/- was taken from the
proceeds of the sale of the property belonging to his parents, as per
Ext.P7. In Ext.P7, the sale deed executed by D.W.1 (father of
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respondent No.1), the sale consideration stated is Rs.54,000/-. It is
stated in Ext.P7 and it is practically admitted by D.W.1 also that the
sale was with intend to purchase another item of land with the sale
consideration received and accordingly D.W.1 purchased another
property for Rs.50,000/-. But respondent No.1 asserted, D.W.1
claimed and D.W.2, the purchaser under Ext.P7 admitted that sale
consideration was Rs.1,53,000/- though it was stated in Ext.P7 as only
Rs.54,000/- for some other purposes. D.Ws.3 and 4 are the document
writer and scribe of Ext.P7. They do not know whether the sale was for
any amount higher than what is mentioned in Ext.P7.
5. According to D.W.1, out of the sale consideration of
Rs.1,53,000/- he received by sale of his property as per Ext.P7, he
paid Rs.75,000/- to his son (respondent No.1). May be Ext.P7 is only
for Rs.54,000/- and going by the version of D.Ws.1 and 2 they may
have to suffer proceedings under the Stamp Act for not mentioning in
Ext.P7 the actual sale consideration. But that is not sufficient to
disbelieve D.Ws.1 and 2. They are the witnesses examined by and for
the petitioner. Nothing is brought out by the petitioner to disbelieve
his own witnesses. It is a fact that Registration Authorities book so
many cases under the relevant provisions of the Stamp Act for not
mentioning the real consideration in the documents. It is thus in the
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evidence which was brought through D.Ws.1 and 2 that
notwithstanding the consideration stated in Ext.P7, the sale was for
Rs.1,53,000/-. There is no reason why D.Ws.1 and 2 should be
disbelieved. I also bear in mind that petitioner has no proper
explanation how the signed blank cheque leaf happened to be in the
custody of respondent No.1 and why in spite of getting a notice which
contained a demand for payment of the amount covered by the
cheque he did not reply. In these circumstances I do not find reason
to interfere with the finding of the courts below which rested on a
proper appreciation of the evidence on record, that petitioner issued
the cheque in question in favour of respondent No.1 for the discharge
of a legally enforceable debt/liability.
6. It is next contended by learned counsel that at any rate,
presumption under Sec.139 of the Act is only as to the consideration
and not as to the legality of recoverability of the debt or liability.
Assuming so, there is the evidence of P.W.1 as to the transaction
which the courts below found in his favour and which I find, there is no
reason to interfere. Petitioner has not rebutted the presumption
under Sec.139 of the Act.
7. Next contention is that notice issued (Ext.P4 is the copy
and Ext.D1 is the original) is not valid in so far as the demand is for
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payment of for Rs.50,000/- and that too, within a period of ten (10)
days. I have gone through the copy of notice made available by the
counsel. Notice starts with case of respondent No.1 that petitioner
issued the cheque in question for Rs.75,000/- and further says that the
said cheque was dishonoured. Towards the end of the notice it is
stated that petitioner has to pay the “said amount of Rs.50,000/-”
due to respondent No.1 within ten days. The amount demanded is
Rs.50,000/- but use of the words ‘said amount’ indicates that
reference is to Ext.P1, cheque which is stated in the notice as issued
for Rs.75,000/-. It leaves me in no doubt that the statement in the
notice regarding the amount as Rs.50,000/- is only an inadvertent
mistake by which petitioner could not have been mislead.
8. So far as the period stated in the notice for repayment is
concerned, it is conceded that it was after the grace period provided
for payment of the amount after service of the notice that respondent
No.1 initiated legal proceedings. Hence notice cannot be said to be
invalid or to have prejudiced the petitioner.
9. On going through the judgments under challenge I find no
illegality, irregularity or impropriety in the courts below entering
conviction on the petitioner. Sentence as modified by the learned
Sessions Judge is in accordance with the provision of law and taking
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into account the object of legislation. There is little reason to interfere
with that as well.
10. At this stage counsel for petitioner requested four months’
time to deposit the fine. Having regard to the amount involved and
circumstances stated by learned counsel I am inclined to grant two
months’ time to the petitioner to deposit the fine as ordered by the
learned Sessions Judge.
Resultantly, revision fails. It is dismissed. Petitioner is granted
two months’ time from this day to deposit the fine in the trial court.
Petitioner shall appear in the trial court on 28.7.2009 to receive the
sentence.
THOMAS P.JOSEPH, JUDGE.
vsv