High Court Kerala High Court

Sasidharan Nair vs Chinthamani on 28 August, 2009

Kerala High Court
Sasidharan Nair vs Chinthamani on 28 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2790 of 2009()


1. SASIDHARAN NAIR, S/O.KUNJUKRISHNA PILLAI
                      ...  Petitioner

                        Vs



1. CHINTHAMANI, W/O.PRABHAKARAN,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.SUBHASH CYRIAC

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :28/08/2009

 O R D E R
                         THOMAS P.JOSEPH, J.
               = = = = = = = = = = = = = = = = = = = = = = = =
                           CRL. R.P. NO.2790 of 2009
               = = = = = = = = = = = = = = = = = = = = = = = = =
                 Dated this the 28th   day of August,    2009

                                  O R D E R

————–

Petitioner faced trial in the court of learned Judicial First Class

Magistrate-II, Varkala in S.T. No.119 of 2006 for offence punishable

under Section 138 of the Negotiable Instruments Act. Complaint of

respondent No.1 is that she advanced Rs.1,00,000/- to the petitioner

on 1.1.2004 by way of loan, latter issued Ext.P1, cheque dated

1.2.2004 for its repayment but the cheque was dishonoured for the

reason “not arranged for”. Cause of dishonour is proved by Exts.P2

and P3. Service of statutory notice on petitioner is proved by Exts.P4

to P6. Petitioner has not replied to the notice. She contended that

she had no transaction with respondent No.1 but she does not know in

what manner his cheque came to the custody of respondent No.1.

Petitioner examined D.W.1, Manager of the bank of respondent No.1.

D.W.1 was summoned to produce details of account No.172386. She

stated that there is no such account maintained in her bank. It is

revealed from Ext.P3, intimation produced from the collecting bank

that account number of respondent No.1 is SM/AC 199. After the

evidence of D.W.1, petitioner took no steps to summon the details of

CRL. R.P. No.2790 of 2009

-: 2 :-

that account. Learned magistrate found that contention of petitioner is

not proved and held petitioner guilty. Appellate court has confirmed

that finding. Concurrent finding is under challenge in this revision.

2. So far as the execution of cheque is concerned, on the one

side there is evidence of respondent No.1 regarding the transaction

leading to the execution of the cheque. On the other side evidence is

nil and contention raised by petitioner is that he does not know in what

manner his cheque reached respondent No.1. That explanation did not

sound good. It is also relevant to note that petitioner did not reply to

the statutory notice served on him. In the circumstances courts below

rightly found that there is nothing to disbelieve the evidence of

respondent No.1 and held petitioner guilty. I find no reason to differ

from that finding.

3. In modification of the sentence and amount of

compensation awarded by the learned magistrate, appellate court

imposed sentence of simple imprisonment till rising of the court and

directed payment of fine of Rs.1,00,000/- to respondent No.1 with

default sentence of imprisonment for two months. It was directed

that fine if realised will be given to respondent No.1. Learned counsel

requested that fine may be converted as compensation payable to

CRL. R.P. No.2790 of 2009

-: 3 :-

respondent No.1 directly. Further request is to grant six months’

time to deposit compensation. It is stated that on account of financial

difficulty petitioner is unable to raise the amount immediately. Having

regard to the nature of offence and amount involved, instead of the

sentence of fine petitioner could be directed to pay compensation.

Considering the circumstances stated by learned counsel I am inclined

to grant time till 22.01.2010 to deposit compensation.

Resultantly, this revision petition is allowed in part to the

following extent:

(i) Substantive sentence awarded to

petitioner is modified as simple imprisonment

till rising of the court.

(ii) Sentence of fine is set aside.

Instead petitioner is directed to deposit in the

trial court for payment to respondent No.1

Rs.1,00,000/- (Rupees One lakh only) by way of

compensation under Section 357(3) of the Code

of Criminal Procedure for payment to

respondent No.1 on or before 21.01.2010

failing which petitioner has to undergo simple

imprisonment for three months.


CRL. R.P. No.2790 of 2009

                                   -: 4 :-




                   (iii) It is made clear that    it shall be

            sufficient compliance with     the direction for

deposit of compensation if petitioner paid

compensation to respondent No.1 through his

counsel in the trial court and respondent No.1

filed a statement in the trial court through her

counsel acknowledging receipt of

compensation within the said period.

Petitioner shall appear in the trial court on 21.01.2010 to

receive the sentence. Until then execution of warrant if any against

petitioner will remain in abeyance.

THOMAS P.JOSEPH, JUDGE.

vsv