IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2053 of 2009()
1. P.K.JAYAPRAKASH
... Petitioner
Vs
1. STATE OF KERALA & ANOTHER
... Respondent
For Petitioner :SRI.P.HARIDAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/06/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2053 of 2009
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Dated this the 29th day of June, 2009
O R D E R
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Notice to respondent No.2 is dispensed with in view of the
order I am proposing to pass which is not prejudicial to him. Public
Prosecutor takes notice for respondent No.1.
2. This revision is in challenge of judgment of learned
Additional Sessions Judge (Adhoc-I), Kottayam in Crl. Appeal No.259 of
2007 confirming conviction and sentence on petitioner for offence
punishable under Section 138 of the negotiable Instruments Act.
3. Case arose on a complaint preferred by respondent No.2.
He claimed that petitioner borrowed Rs.2,50,000/- from him and
issued Ext.P1, cheque in discharge of that amount. That cheque was
dishonoured for insufficiency of funds. On getting dishonour intimation
respondent No.2 issued notice to the petitioner intimating dishonour
and demanding payment of the amount. Dishonour of the cheque for
reason stated above and issue and service of notice on petitioner are
proved by Exts.P2 to P9. Findings entered by the courts below in that
regard are not under challenge. Respondent No.2 as P.W.1 gave
evidence and stated about the transaction between him and petitioner
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leading to the execution of cheque. According to petitioner he had
not borrowed any amount from respondent No.2. He had received
money from M/s.Ettumanoor City Finance after hypothecating his
vehicle. At that time a signed blank cheque was given as security. He
defaulted payment of the installment and the vehicle was repossessed
by the financier. Exhibit D1 is certified copy of report in Crime
No.295 of 2004 regarding alleged repossession of the vehicle.
Learned magistrate observed that it is not shown that Ext.D1 is
connected with the transaction referred to by P.W.1. It is contended
that finding of courts below regarding due execution of the cheque is
not correct.
4. It is not disputed that Ext.P1 is signed by petitioner and
drawn on the account maintained by him. According to him that
cheque was given to a financier with whom he had hypothecated his
vehicle. It is to prove repossession of the vehicle that Ext.D1 is
produced. Courts below held that Ext.D1 is not proved to be
connected with Ext.P1. Mere production of Ext.D1 is not sufficient.
Respondent No.2 denied the suggestion put on behalf of petitioner.
Petitioner did not reply to the statutory notice. If no amount was due
to respondent No.2 in the manner claimed by the latter petitioner
would have normally replied to the notice served on him. Petitioner
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has no satisfactory explanation for not replying to the statutory
notice. Nothing is brought out to disbelieve evidence of P.W.1. Courts
below have taken note of these circumstances to find in favour of due
execution of the cheque. I do not find reason to interfere with that
finding.
5. Learned magistrate sentenced petitioner to undergo simple
imprisonment for five months. Petitioner was directed to pay
compensation of Rs.2,50,000/- and in default to undergo simple
imprisonment for five months. Appellate court modified
substantive sentence as simple imprisonment till rising of the court
while retaining the direction for payment of compensation and the
default sentence. I do not find reason to interfere with the sentence
as modified by the appellate court and the direction for payment of
compensation with default sentence.
6. Learned counsel for petitioner requested six months’ time
to deposit the compensation. Counsel states that petitioner’s
property has been taken over by another creditor for realisation of the
amount due to it. Petitioner is unable to raise the amount
immediately. Considering the difficulties expressed by petitioner I
am inclined to grant five months’ time to petitioner to deposit the
compensation in the trial court.
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Resultantly, this revision fails. It is dismissed. Petitioner is
granted five months’ time from this day to deposit the compensation
in the trial court. It is made clear that it shall be sufficient
compliance of the direction for deposit of compensation if petitioner
paid compensation to respondent No.2 through his counsel in the trial
court and respondent No.2 filed a statement in the trial court through
his counsel acknowledging receipt of compensation within the said
period of three months.
Petitioner shall appear in the trial court on 1.12.2009 to receive
the sentence.
THOMAS P.JOSEPH, JUDGE.
vsv
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