IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1728 of 2009()
1. RAJAN M.K. S/O. AYYAPPAN KESAVAN,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. D.JAYALAL,S/O.DIVAKARAN PILLAI,
For Petitioner :SRI.P.HARIDAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/06/2009
O R D E R
THOMAS P. JOSEPH, J.
------------------------------------
Crl.R.P.NO. 1728 OF 2009
----------------------------------------
Dated this the 3rd 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. Petitioner faced trial for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the
Act”). He was found guilty, convicted and sentenced to undergo
Simple Imprisonment for one month to pay Rs.35,000/- as
compensation. In appeal, conviction was confirmed, substantive
sentence was modified as simple imprisonment till rising of the
court and the amount of compensation to be deposited was
modified as Rs.32,000/-. A default sentence for one month was
also provided. Petitioner is aggrieved and hence this revision.
2. Case of respondent No.2 is that petitioner owed
Rs.32,000/- to him and for the discharge of that liability issued
the cheque. Ext.P1 is the cheque in question. Dishonour of that
cheque for insufficiency of funds is proved by Exts.P2 and P3.
Crl. R.P.No.1728/09 2
That, respondent No.2 sent notice to the petitioner intimating
dishonour and demanding payment of amount and that said
notice was served on the petitioner are proved by Exts.P4 to
P6. Petitioner neither paid the amount nor replied to the
notice. Respondent No.2 gave evidence as PW1 and testifies
to his case. Contention raised by the petitioner is that the
cheque was given in connection with a chitty transaction. He
had subscribed to a kuri run by respondent No.2 and at that
time, given three signed blank cheques. One of those cheque
leaves has been misused. Petitioner did not adduce evidence
in proof or to probilise that contention. Courts below
considered the evidence of respondents 2 and found in favour
of due execution of the cheque. It is contended that due
execution of the cheque is not proved.
3. Having regard to the facts of the case and evidence
let in by respondent No.2, and the fact that petitioner did not
even respond to the notice served on him, I am unable to
accept that contention. It is not shown that petitioner gave
any signed blank cheque as security for any other transaction.
Nothing is brought out to disbelieve the evidence of PW1.
Courts below on the evidence on record are justified in holding
Crl. R.P.No.1728/09 3
that petitioner issued the cheque for discharge of legally
enforceable debt/liability and that the presumption under
Section 139 of the Act has not been rebutted by him. Hence
there is no scope for interference with the conviction of the
petitioner.
4. So far as sentence is concerned, there is little
reason to interfere with the substantive sentence awarded by
the appellate court or direction for deposit of compensation.
5. Counsel for petitioner requested four months’ time
to deposit the compensation. Considering the amount involved
and circumstances stated by learned counsel, I am inclined to
grant two months’ time to deposit compensation in the trial
court.
Resultantly, this revision fails and it is dismissed.
Petitioner is granted two months’ time to deposit the
compensation in the trial court as ordered by the appellate
court. He shall appear in the trial court on 6.8.2009 to receive
the sentence.
THOMAS P. JOSEPH, JUDGE
Acd
Crl. R.P.No.1728/09 4