IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2515 of 2004()
1. PRAKASAN, AGED 33, S/O.NALINAKSHAN,
... Petitioner
Vs
1. JOMON CHERIAN, MAMPILLY HOUSE,
... Respondent
2. STATE OF KERALA TO BE REP.BY PUBLIC
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2515 of 2004
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Dated this the 17th day of June, 2009.
ORDER
Learned counsel for petitioner submitted that petitioner is
undergoing imprisonment in Central Prison, Viyyoor and requested early
disposal of this revision. Learned counsel also submitted that this Court, without
calling for the records could dispose of the revision based on the facts and
evidence referred in the judgments under challenge.
2. This revision is in challenge of judgment of learned Additional
Sessions Judge, North Paravur in Crl.Appeal No.669 of 2002 confirming
conviction and sentence of petitioner for offence punishable under Section 138
of the Negotiable Instruments Act (for short, “the Act”). According to respondent
No.1, petitioner borrowed Rs.35,000/- from him and issued cheque (Ext.P3)
dated 24.11.1998. That cheque was dishonoured for insufficiency of funds as
proved by Exts.P1, P2, P4 and P5 and evidence of PW1, manager of drawee
bank. There is no challenge to that part of finding of the courts below.
4. Respondent No.1 issued notice to the petitioner on 10.12.1998
intimating dishonour and demanding payment. Issue and service of notice on
petitioner are proved by Exts.P6 to P8. It is not disputed that petitioner sent
reply to respondent No.1 which according to the latter contained false
contentions. Since petitioner did not pay the amount as demanded in the
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statutory notice, respondent No.1 preferred the complaint. He gave evidence as
PW2 and stated that petitioner borrowed Rs.35,000/- from him and issued the
cheque. According to the petitioner, he had taken a loan of Rs.10,000/- from
respondent No.1 and at that time given a signed blank cheque as security. He
repaid the entire amount but respondent No.1 did not return the cheque. To
prove that, petitioner examined DW1. He testified in that line. Courts below did
not accept the evidence of DW1, acted upon the evidence of respondent No.1
and found the petitioner guilty. That finding is under challenge in this revision.
5. It is true that petitioner on being intimated about dishonour of
cheque and demand for payment of the amount issued a reply and examined a
witness on his side to substantiate his contention. Still, the question arose
whether evidence of that witness can safely be accepted in preference to the
evidence given by respondent No.1 in the facts and circumstances of the case.
It is not disputed that Ext.P3 contained the signature of petitioner and that it was
drawn on the account maintained by him. He had a financial transaction with
respondent No.1 and himself handed over the cheque in connection with that a
transaction. The dispute is whether the amount borrowed was Rs.35,000/- as
claimed by respondent No.1 or it was only Rs.10,000/- as contended by
petitioner and his witness. Learned magistrate observed that though DW1
stated so, no suggestion in that line was put to respondent No.1 when the latter
was examined as PW2. Learned magistrate also observed that contention that
petitioner borrowed only Rs.10,000/- and repaid the amount came only towards
the fag end of the trial and in the absence of acceptable evidence, that
contention cannot be accepted. Here is a case where the a cheque for
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Rs.35,000/- was produced by respondent No.1. That document created liability
on the petitioner. Petitioner did not succeed in discrediting the evidence of
respondent as to the transaction and execution of the cheque. Courts below
have considered and accepted the evidence of respondent No.1. Sitting in
revision, I do not find reason to interfere with the concurrent finding entered by
the courts below as it does not suffer from any illegality, irregularity or
impropriety.
6. Learned magistrate sentenced the petitioner to undergo simple
imprisonment for three months. Appellate court has confirmed the sentence.
Now it is shown that petitioner has been in the jail, undergoing imprisonment
since the last one week. I am inclined to think that the period of imprisonment
already undergone by him is sufficient so far as substantive sentence is
concerned.
7. At the same time respondent No.1 who suffered loss at the hands
of petitioner cannot be forgotten. Provision is made in Section 357 (3) and (4) of
the Code of Criminal Procedure (for short, “the Code”) to award compensation
to reassure the victim that he is not forgotten by the criminal justice system.
Taking into account the loss suffered by respondent No.1 I consider it
appropriate that this Court should exercise its power under Section 357(4) of the
Code to compensate the loss caused to respondent No.1 by awarding
compensation in terms of money which on the facts and circumstances of this
case is fixed at Rs.35,000/-.
7. Learned counsel for petitioner requested two months’ time to
deposit the compensation in the trial court. Counsel submits that since the
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petitioner is now in prison, he may not be able to raise the necessary funds
forthwith. Considering the circumstances stated by the learned counsel I am
inclined to allow that request.
Resultantly, this revision is allowed in part in the following lines:
i. Substantive sentence awarded by the courts below is
modified to the period of detention already undergone by the petitioner. He shall
be released from jail forthwith if not required to be detained otherwise.
ii. Petitioner shall deposit in the trial court for payment to
respondent No.1 Rs.35,000/- (Rupees Thirtyfive thousand only) as
compensation under Section 357(3) of the Code within two months from this day
failing which he shall undergo simple imprisonment for a period of fortyfive (45)
days.
Issue intimation to the Superintendent of Central Prison, Viyyur.
Crl.M.A.No.11695 of 2004 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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