IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 808 of 2001()
1. R. MADHUSUDHANAN NAIR
... Petitioner
Vs
1. V.R. GOPI
... Respondent
For Petitioner :SRI.JOHN JOSEPH(ROY)
For Respondent :SRI.C.K.SAJEEV
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/12/2008
O R D E R
THOMAS P.JOSEPH, J.
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CRL.R.P. No.808 of 2001
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Dated this the 3rd day of December, 2008
O R D E R
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Heard both sides.
2. Revision petitioner is aggrieved by his conviction for
offence punishable under Section 138 of the Negotiable Instruments
Act (for short, “the Act”). Learned magistrate sentenced him to
undergo simple imprisonment for two months and payment of fine of
Rs.13,000/-. Revision petitioner carried the matter in appeal where,
conviction and substantive sentence were confirmed but fine was
reduced to Rs.5,000/-. Hence this revision.
3. It is contended by learned counsel that due execution of
the cheque is not proved. First respondent supported the findings
entered by the courts below.
4. According to the first respondent, revision petitioner
borrowed Rs.12,000/- from him on 24.1.1995 and issued Exhibit P1,
cash cheque dated 25.1.1995. First respondent presented that cheque
for collection through his bank but it was returned on 1.2.1995 for
insufficiency of funds. Notice was issued to the revision petitioner on
10.2.1995 intimating dishonour and demanding payment. Notice was
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served on 17.2.1995 but there was no positive response. Hence the
complaint. First respondent gave evidence as P.W.1, examined P.Ws.2
and 3 and proved Exhibits P1 to P8. Evidence of P.Ws.2 and 3 and
Exhibits P2 to P8 show that cheque was dishonoured for insufficiency
of funds. Case of revision petitioner is that he had no transaction
with the first respondent and had given Exhibit P1 to one Lalith Mohan
as an accommodation cheque. Courts below did not accept that
contention.
5. That, Exhibit P1 is a cash cheque cannot take it outside the
purview of Section 138 the Act particularly when it is the case of
revision petitioner that he had given that cheque to another person
though according to him for some adjustment. So far as that
contention is concerned, what I find is only certain suggestions to first
respondent when the latter was in the box. First respondent has
given evidence regarding the transaction. Nothing is brought out to
disbelieve his version. Contention of the revision petitioner that he
gave Exhibit P1 to Lalith Mohan is not substantiated or even
probabilised.
6. Though it was contended in the court below on behalf of
revision petitioner that Exhibits P6 and P8 were fraudulently created
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for this case, trial court found against that contention and held that
evidence of P.Ws.2 and 3 and Exhibits P2 and P6 to 8 revealed that
cheque was dishonoured for insufficiency of funds and that dishonour
intimation was given to the revision petitioner on 1.2.1995.
Considering the evidence in the light of the contentions raised on
either side, I have no reason to interfere with the concurrent findings
of fact entered by the courts below. Conviction therefore cannot be
assailed.
7. So far as sentence awarded is concerned, considering the
amount involved and the object of legislation, I am of the view that
simple imprisonment till rising of the court and payment of
compensation will be sufficient in the ends of justice.
Resultantly, revision petition is allowed in part in the following
lines:
(i) Substantive sentence awarded to the revision
petitioner is modified as simple imprisonment till
rising of the court.
(ii) Revision petitioner is directed to deposit in the trial
court for payment to the first respondent
Rs.13,000/- (Rupees Thirteen thousand only) as
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compensation within three months from this day
failing which he shall undergo simple imprisonment
for two months.
(iii) It will be sufficient compliance with the direction
contained in clause (ii) above if revision petitioner
paid compensation to the first respondent through
counsel in the trial court and first respondent files a
statement in the trial court through counsel within
the said period of three months acknowledging
receipt of the amount.
(iv) Revision petitioner shall surrender in the trial court
on 10.3.2009 to receive the sentence.
Bail bond shall stand cancelled.
Criminal Miscellaneous Petition No.3746 of 2001 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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CRL.R.P. NO. 808 OF 2001
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O R D E R
3RD DECEMBER, 2008