IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1809 of 2009()
1. P.VENUGOPALA BHAT,S/O.PADMANABHA BHAT,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. V.S.KAMATH,S/O.R.V.KAMATH,C C NO.8/2177,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1809 of 2009
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Dated this the 10th day of June, 2009.
ORDER
Public Prosecutor takes notice for respondent No.1. Notice to
respondent No.2 is dispensed with in view of the order I am proposing to make
and which is not prejudicial to him.
2. This revision is in challenge of the judgment of learned Additional
Sessions Judge (Adhoc-II), Ernakulam in Crl.Appeal No.968 of 2008 confirming
conviction of the petitioner for offence punishable under Section 138 of the
Negotiable Instruments Act (for short, “the Act) but modifying the sentence
awarded by the learned magistrate. According to respondent No.2, petitioner
owed Rs.25,000/- to him and for the discharge of that liability issued Ext.P1,
cheque dated 10.6.2005, that cheque on presentation was dishonoured for
insufficiency of funds and on getting dishonour intimation, he issued notice to
the petitioner on 21.6.2005 intimating dishonour and demanding payment.
Petitioner did not pay the amount and instead sent a reply dated 6.7.2005 taking
false contentions. Respondent No.2 gave evidence as PW1 and proved
Exts.P1 to P6. Ext.P1 is the cheque in question. Dishonour of that cheque for
the above said reason and issue and service of statutory notice are proved by
Exts.P2 to P5. Ext.P6 is the reply to the statutory notice.
3. Petitioner gave evidence as DW1. He claimed that he had no
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transaction with respondent No.2 but a signed blank cheque was given to
Kamalnath Bhat, brother of the petitioner before the year 2000 in connection
with a partnership business petitioner had with said Kamalnath Bhat.
Respondent No.2 stealthily got the signed blank cheque from Kamalnath Bhat
and misused it. Courts below did not accept that version of petitioner and
found that petitioner issued the cheque for the discharge of legally enforceable
debt/liability. Courts below also found that petitioner failed to rebut the
presumption under Section 139 of the Act. Those findings are challenged in
this revision.
4. Though the contention raised by the petitioner when questioned
under Section 313 of the Code of Criminal Procedure is that he had no dealings
with respondent No.2 and gave signed blank cheque to his brother, Kamalnath
Bhat before the year 2000, he practically admitted the transaction with
respondent No.2 in Ext.P6, reply. He admitted the issuance of cheque to
respondent No.2 except that he had put date on the cheque. When he was
confronted with Ext.P6, he blamed his counsel who issued that reply notice on
his behalf and stated that the said statement in Ext.P6 was without his
instruction.
5. It is true that being an accused in a case, it is open to the petitioner
to take up inconsistent or contradictory pleas but, certainly that will have a
bearing on the question whether his contention could be accepted or not.
When a notice is sent by the counsel, there is a presumption that it is issued on
the instruction given by the client. It is for the client to rebut that presumption. In
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this case petitioner is not disowning Ext.P6. He only says that the statements
in Ext.P6 are without his instruction. There is no reason to think so. Courts
below observed that if petitioner had a case that the cheque in question was
given prior to the year 2000, he could have produced the counter foil of the
cheque book or summoned the relevant records from his bank to prove that the
cheque book containing Ext.P1 was issued to him prior to 2000. Petitioner did
not do so. On the other hand, there is the evidence of respondent No.2 which I
find no reason to disbelieve. On the facts, circumstances and evidence on
record courts below rightly found that petitioner issued the cheque for the
discharge of a legally enforceable debt/liability. I do not find any illegality,
impropriety or irregularity in the finding of the courts below as to the due
execution of the cheque and failure of the petitioner to rebut the presumption
under Section 139 of the Act.
6. So far as dishonour of the cheque for insufficiency of funds and
service of statutory notice are concerned, there is no challenge in this revision
to the findings in that regard . Conviction of the petitioner under the
circumstances is legal and proper and required no interference.
7. Learned magistrate sentenced the petitioner to undergo simple
imprisonment for six months and to pay fine of Rs.35,000/- with default sentence
for six months. In appeal the sentence was modified as simple imprisonment
till rising of the court and fine of Rs.25,000/- Default sentence was modified as
simple imprisonment for one month. In the nature of the offence committed, I do
not find reason to interfere with the sentence as modified by the appellate court.
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8. Learned counsel submitted that petitioner is involved in two
other cases of similar nature with direction for payment of fine and hence,
petitioner may be granted six months’ time to deposit fine in the trial court as
ordered by the appellate court. Considering the amount involved and the
circumstances stated by the learned counsel, I am inclined to grant four months’
time to the petitioner to deposit the fine as ordered by the appellate court.
Resultantly, this revision fails. It is dismissed. Petitioner is granted four
months’ time to deposit the fine in the trial court as ordered by the appellate
court. Petitioner shall appear in the trial court on 12.10.2009 to receive the
sentence.
Crl.M.A.No.5488 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks