IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 711 of 2000(C)
1. PALAYALLATHIL MUSTHAFA
... Petitioner
Vs
1. PALANCHERRY GOVINDAN NAIR
... Respondent
For Petitioner :SRI.P.K.RAMKUMAR
For Respondent :SRI.N.JAMES KOSHY
The Hon'ble MR. Justice A.K.BASHEER
Dated :04/04/2008
O R D E R
A.K.BASHEER, J.
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Crl.R.P.No.711 OF 2000
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Dated this the 4th day of April 2008
ORDER
Petitioner was found concurrently guilty under Section 138
of the Negotiable Instruments Act by the trial court as well as
the appellate court. The trial court had sentenced him to
undergo simple imprisonment for nine months. However, in
appeal the learned Sessions Judge modified and reduced the
sentence to three months’ simple imprisonment. The order of
the learned Sessions Judge is under challenge in this revision
petition.
2. The case of the complainant before the trial court was
that the accused had borrowed a sum of Rs.40,000/- from him
promising to repay the same within three months. The accused
did not discharge the liability as promised. However, when the
demand for payment was made, the accused issued Ext.P1
cheque which on presentation was dishonoured. Though Ext.P3
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demand notice was issued by the complainant the liability was
not discharged by the accused. Hence the complaint.
3. The complainant was examined as PW1 and the Manager
of the Bank was examined as PW2. Exts.P1 to P7 were marked
on the side of the complainant. Ext.D1 was produced on the side
of the defence.
4. The defence set up by the accused before the trial court
was that his initials were not ‘M.K.’ as indicated in the cause
title, but it was ‘P’. The above contention was repelled by the
learned Magistrate. Significantly the accused did not have a
case that he had not issued Ext.P1 cheque to the complainant.
Similarly, the accused did not also have a case that he did not
maintain the account in question from which Ext.P1 cheque was
issued. More importantly, petitioner was described as
‘Palayullathil Musthafa’. Therefore, obviously his “initial” shown
in the cause title could have been an inadvertent mistake
committed by the complainant. The said mistake was of no
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significant at all as rightly held by the trial court as well as the
appellate court. As mentioned earlier, the accused had admitted
issuance of the cheque to the complainant. The accused did not
adduce any evidence to substantiate his contentions. He had
also not sent any reply to Ext.P3 demand notice issued by the
complainant after dishonour of the cheque. The courts below
had elaborately considered the oral and documentary evidence
on record and held that the complainant had satisfactorily
proved his case.
5. I do not find any reason to interfere with the concurrent
orders passed by the courts below. There is no merit in the
revision petition.
6. At this stage, learned counsel for the petitioner submits
that the accused is prepared to discharge the liability, if some
reasonable time is granted.
Having regard to the peculiar facts and circumstances, I am
satisfied that an opportunity can be granted to the petitioner. If
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the petitioner appears before the court below on August 5, 2008
and remits a sum of Rs.45,000/- as compensation to be paid to
the complainant under Section 357(3) of the Code of Criminal
Procedure, the sentence of imprisonment imposed on the
petitioner by the appellate court shall stand set aside. In lieu of
that he shall suffer imprisonment till the rising of the court on
that day in addition to the payment of the compensation as
indicated above. On failure of the petitioner to appear and remit
the above sum of compensation, the order passed by the
Sessions Court shall remain in force.
(A.K.BASHEER, JUDGE)
jes