IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1364 of 2003()
1. P.S.RAVI, S/O. LATE SUKUMARAN,
... Petitioner
Vs
1. K.K.RAJESH S/O. K.K.KARUNAKARAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent :SRI.A.R.GANGADAS
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :05/04/2010
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.1364 of 2003.
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Dated this the 5th day of April, 2010.
O R D E R
The revision petitioner was prosecuted by the first
respondent in CC.No.237/1998 on the file of the Judicial
Magistrate of the First Class-III, Palakkad for offence under
Section 138 of the Negotiable Instruments Act with an
allegation that on 5.10.1997 the revision petitioner
borrowed Rs.10,000/- and in discharge of that liability
Ext.P1 cheque dated 24.2.1998 drawn on Akathethara
Service Co-operative Bank Ltd., was issued and that when
sent for collection through Indian Overseas Bank, Palakkad
it was returned bounced for insufficiency of funds and that
despite the notice demanding discharge, the liability was
not discharged.
2. Since the revision petitioner pleaded not guilty,
he was sent for trial. Pws.1 and 2 were examined and
Exts.P1 to P8 were marked. The revision petitioner took up
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a plea of total denial. No defence evidence was let in. The
learned Magistrate on appraisal of the evidence arrived a
finding of guilty. Consequently, the revision petitioner was
convicted for offence under Sec.138 of the Negotiable
Instruments Act and sentenced to simple imprisonment for
one month and to pay Rs.20,000/- as compensation to the
first respondent under Sec.357(3) of the Code of Criminal
Procedue. Though the revision petitioner preferred
Crl.Appeal No.126/2000 he was not successful. Assailing
the legality, correctness and propriety of the above
conviction and sentence as confirmed in appeal, this
revision petition was filed.
3. According to the learned counsel for the revision
petitioner, the statutory notice, copy of which is marked as
Ext.P3 was issued out of time and hence the prosecution is
not sustainable. Ext.P3 lawyer notice is dated 24.3.1998.
Ext.P6, the memo issued from the bank, is dated 5.3.1998.
This was clearly noticed by the courts below. It is in that
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circumstance, Pw2, the then Manager of the Indian
Overseas Bank was examined. He had deposed that Ext.P1
cheque was presented for collection through his bank and it
was returned dishonoured for insufficiency of funds and
that Ext.P6 was communicated from the bank only on
16.3.1998. According to him, the delay was due to an
omission from the bank. It is in support of the oral evidence
of Pw2, Ext.P8, an extract of the register maintained by the
bank was produced. Going by the evidence of Pw2 and
Ext.P8, the courts below arrived a finding that Ext.P6 was
communicated to the first respondent only on 16.3.1998.
That finding is absolutely correct. Period for issuing notice
has to be calculated from that date. That being so, the
notice dated 24.3.1998 was found issued in time. I find
little reason to interfere with the concurrent finding of facts
regarding the date of issue of the notice. I find no room for
an alternate finding. So, the plea of the learned counsel for
the revision petitioner that the notice was issued out of time
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is devoid of merit.
4. The learned counsel for the revision petitioner
further contended that the borrowal was only Rs.2,000/- and
that the liability was later discharged. In support of that
contention absolutely there is no material available on
record. It is crucial to note that the revision petitioner
didn’t care to respond to the notice demanding discharge of
the liability. In the event, the liability was anything lesser
than the amount for which the cheque was drawn and what
was mentioned in the notice or that it was discharged as
now contended, the revision petitioner would have
responded to the notice. The silence of the revision
petitioner after acknowledging the notice persuades me to
arrive at an inference that in fact, the revision petitioner
had no good defence at the time when he received the
notice and that the defence raised in trial is the result of an
after thought without the support of any evidence. On the
other hand, the evidence of the first respondent regarding
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the consideration and liability is supported by the
presumptions under Sec.118 and 138 of the Negotiable
Instruments Act. There isn’t even an attempt to rebut that
presumption. So, I find no reason to interfere with the
concurrent finding of the courts below. There is no error,
illegality or impropriety in the findings. The conviction is
based upon cogent evidence.
5. Taking note that the revision petitioner is an
agriculturist and that an ordinary money transaction had
put him to the trouble of facing the prosecution, I find that
the revision petitioner is entitled to a little leniency in
sentence and that a sentence of imprisonment till the rising
of the court and to pay compensation as ordered by the
courts below would meet the ends of justice.
In the result, this revision petition is allowed in part.
While confirming the conviction, the substantive sentence is
reduced to imprisonment till the rising of the court. The
order to pay compensation is sustained. The revision
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petitioner is granted two months time to deposit the
compensation amount. If any amount is already deposited,
the first respondent is at liberty to withdraw the same.
P.S.GOPINATHAN
(Judge)
Kvs/-