High Court Kerala High Court

Paul Raj vs K. Anil Kumar on 11 December, 2008

Kerala High Court
Paul Raj vs K. Anil Kumar on 11 December, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1154 of 2001()



1. PAUL RAJ
                      ...  Petitioner

                        Vs

1. K. ANIL KUMAR
                       ...       Respondent

                For Petitioner  :SRI.P.RAVINDRA BABU

                For Respondent  :SRI.S.SANTHOSH KUMAR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :11/12/2008

 O R D E R
                            THOMAS P. JOSEPH, J.
                           --------------------------------------
                             Crl.R.P.No.1154 of 2001
                           --------------------------------------
                   Dated this the 11th day of December, 2008.

                                        ORDER

Revision petitioner was convicted for offence punishable under Section

138 of the Negotiable Instruments Act (for short, ‘the Act’) and sentenced to

undergo simple imprisonment for one year and payment of fine of Rs.80,000/-

as per judgment dated 27.8.1997. Aggrieved, revision petitioner filed appeal.

Learned Sessions Judge confirmed the conviction but set aside the sentence as

fine imposed was beyond the power of Judicial First Class Magistrate and

remanded the case to the court of learned magistrate to pass proper sentence.

Revision petitioner challenges the concurrent finding entered by the courts below

regarding his guilt.

2. Heard both sides.

3. Case of the first respondent is that revision petitioner borrowed

Rs.50,000/- from him and issued cheque dated 25.9.1994 for the discharge of

that debt. Ext.P1 is the cheque. Its dishonour for insufficiency of funds is proved

by Exts.P2 and P7 and evidence of PW2. Issue of notice intimating dishonour

and demanding payment of the amount and its service on revision petitioner are

proved by Exts.P3 to P5. First respondent gave evidence as PW1 and testified

to his case. Case of the revision petitioner is that he used to take garments

from the shop of first respondent for sale on credit basis and issued signed blank

Crl.R.P.No.1154/2001

2

cheque as security towards cost of the garments. Balance amount due to the

first respondent was only Rs.233/- but first respondent misused the cheque and

presented it for encashment. It is also the case of revision petitioner that even

before the first respondent issued notice intimating dishonour and demanding

payment of cheque amount, he had issued Ext.P6 notice on 29.10.1994

informing the first respondent about the whole transaction, intimating the

balance amount due from him and requesting the first respondent not to fill up

the cheque and present the same. Revision petitioner proved Exts.D1 to D4.

Exts.D1 series and D2 series, according to the revision petitioner, are bills while

according to the first respondent, the same are estimates as per which revision

petitioner purchased garments from the shop of the first respondent. Ext.D3,

according to the revision petitioner is the visiting card of Sudheesh, said to be a

representative of first respondent and through whom certain payments were

allegedly made. Ext.D4 is the copy of notice issued by the revision petitioner to

the first respondent. Learned counsel for revision petitioner contended that first

respondent has not proved due execution of the cheque and at any rate,

presumption under Section 138 of the Act is rebutted. Counsel for first

respondent supported the concurrent finding entered by the courts below.

4. It is not very much in dispute that Ext.P1 is drawn on the account

maintained by the revision petitioner. First respondent has not disputed that

revision petitioner had transactions with him in the matter of sale of garments

on credit basis or otherwise. He did not also dispute Exts.D1 and D2

Crl.R.P.No.1154/2001

3

series, bills or estimates as the case may be. Ext.D1 series dated 20.12.1993

are for Rs.17,720/-. First respondent admitted that revision petitioner repaid

Rs.1,000/- towards that liability and that is endorsed on the back of Ext.D1

series. Ext.D2 series are dated 23.1.1994 for Rs.14,413/-. First respondent

admitted that revision petitioner paid Rs.6,000/- towards that liability and that fact

was endorsed on the back of Ext.D2 series. He also admitted that it was when

the liability as per the credit transaction was not fully discharged that he lent

Rs.50,000/- to the revision petitioner. According to the learned counsel for

revision petitioner, it is highly improbable that the first respondent would do so

when there was outstandings as per the credit transactions. That, however

depended on the relationship between the parties. As per the version of the

revision petitioner, he had regular credit transactions with the first respondent,

purchasing garments from the shop of the first respondent on credit basis or

otherwise. It is not shown that Exts.D1 and D2 series are part of the transaction

which in any way culminated in Ext.P1.

Crl.R.P.No.1154/2001

4

5. So far as Ext.D3 is concerned, that is a printed visiting card

allegedly issued by the first respondent and in the column concerning name of

the representative, name of one Sudheesh is written with ink. First respondent

when examined as PW1 denied that Sudheesh is his representative. There is no

evidence to the contra. Revision petitioner did not take any step to examine

Sudheesh or summon any other document which would show that Sudheesh is

a representative of the first respondent. It is also not shown that revision

petitioner had made payments to said Sudheesh.

6. It is true that going by the date shown in the postal seal affixed on

Ext.D4, that notice was sent to the first respondent on 29.10.1994 stating about

the case pleaded by the revision petitioner but it is also to be noted that the first

respondent had presented the cheque on 29.10.1995 and it was dishonoured at

that time. Possibility of revision petitioner being aware of the dishonour on

29.10.1994 and sending Ext.D4 notice in defence cannot be ruled out. When it

is shown that the cheque is drawn on the account maintained by the revision

petitioner and it contained his signature, it is for him to prove or atleast

probabilise the circumstances under which the signed blank cheque happened

to be in the custody of the first respondent. Mere suggestions in that regard or

proof of some documents which do not throw light on the issue and which did not

affect the case pleaded by the first respondent is not sufficient. In the

Crl.R.P.No.1154/2001

5

circumstances, I do not find any illegality, irregularity or impropriety in the finding

of the courts below that petitioner is guilty under Section 138 of the Act.

Challenge to the conviction therefore, has to fail.

7. So far as sentence awarded by the trial court is concerned, learned

Sessions Judge found that the sentence of fine is not legal, set aside the same

and remanded the matter for awarding proper sentence. There is no reason to

interfere with that part of the judgment also.

Resultantly, revision petition fails and it is dismissed. Parties are directed to

appear in the trial court on 31.1.2009.

Crl.M.P.No.5454 of 2001 will stand dismissed.

THOMAS P.JOSEPH,
JUDGE.

cks

Crl.R.P.No.1154/2001

6

Thomas P.Joseph, J.

Crl.R.P.No.1154 of 2001

ORDER

11th December, 2008