IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2587 of 2009()
1. SHIHABUDEEN, PROPRIETOR, ASIAN HOLLOW
... Petitioner
Vs
1. DOMINIC, S/O.KUTTAN NADAR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.2587 of 2009
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Dated this 11th day of August 2009
ORDER
Notice to respondent No.1 is dispensed with in view of the order
I am proposing to pass in this revision which is not prejudicial to him.
Heard counsel for petitioner and public prosecutor who took notice for
respondent No.2.
2. This revision is in challenge of judgment of learned
Additional Sessions Judge, Fast Track No-4, Thiruvananthapuram in
criminal appeal No.922 of 2007 confirming conviction but modifying
the sentence of petitioner for offence punishable under section 138 of
the Negotiable Instruments Act. According to respondent No.1,
petitioner borrowed Rs.150000/- from him and issued Ext.P1, cheque
dated 07-12-2005 for repayment of that amount. That cheque was
dishonoured for insufficiency of funds as proved by Ext.P2. Service of
statutory notice on petitioner is proved by Exts.P3 to P5. According to
the petitioner, he had no transaction with respondent No.1 and was
seeing him for at the first time in court. He claimed that he had
borrowed Rs.120000/- from DW1 on the security of documents
pertaining to his vehicles and three signed blank cheques including
Ext.P1. Of the said amount he repaid Rs.one lakh with interest.
Documents concerning of one of the vehicles were returned to him.
The complaint is at the instance of DW1 misusing the cheque.
Crl.R.P.No.2587 of 2009 2
Petitioner gave evidence as DW2 and proved Exts.D1 to D3, receipts
said to be issued by DW1 in his favour. Court below found that Exts.D1
to D3 do not in any way bind respondent No.1, accepted his case and
found in favour of due execution of the cheque. That finding is under
challenge in this revision.
3. It is true that DW1 admitted that petitioner (DW2) had
borrowed Rs.35000/- from him on security of documents of vehicles.
But he denied that Exts.D1 to D3 are signed by him. DW2, petitioner
ofcourse claimed that Exts.D1 to D3 were issued by DW1. There is no
acceptable evidence in that line except what petitioner testified as
DW1. At any rate, courts below found and it is not shown to be
otherwise, that Exts.D1 to D3 do not affect the claim of respondent
No.1 based on Ext.P1. It is not disputed that Exts.D1 to D3 do not refer
the cheque in question. So far as failure of petitioner to reply to
statutory notice is concerned he claimed that he could not reply since
he was laid up due to chickenpox. Regard that there was no reliable
evidence. Courts below found in favour of due execution of the
cheque. That finding is based on proper appreciation of evidence and
require no interference in revision as it is not shown to be vitiated by
any illegality, irregularity or impropriety.
4. Learned magistrate sentenced petitioner to undergo
simple imprisonment for one month and directed payment of
Crl.R.P.No.2587 of 2009 3
compensation of Rs.150000/-. Default sentence of imprisonment for
twenty days’ was also imposed. Appellate court modified the
substantive sentence as simple imprisonment till rising of the court.
Though in the operative portion in the judgment of appellate court it is
stated that compensation payable by petitioner is Rs.one lakh, it is
seen from para 11 of the judgment that after taking into consideration
compensation awarded by trial court, appellate court observed that
petitioner has to pay the cheque amount of Rs.150000/- as
compensation to respondent No.1. In the preface of judgment also it is
stated that compensation payable is Rs.150000/-. It is therefore clear
that the statement in the operative portion of the judgment of
appellate court that compensation payable is Rs.one lakh is only a
clerical error. Hence I make it clear that compensation payable by
petitioner is Rs.150000/-. There is no reason to interfere with the
compensation or default sentence of one month imposed by learned
Additional Sessions Judge at the instance of petitioner.
5. Learned counsel has requested that petitioner may be
granted five months time to deposit compensation. It is stated that
petitioner is not able to raise the entire amount immediately on
account of financial difficulties. Having regard to the circumstances
stated by learned counsel I am inclined to grant time till 11-01-2010 to
deposit the compensation.
Crl.R.P.No.2587 of 2009 4
Resultantly this revision petition fails. It is dismissed. Petitioner
is granted time till 11-01-2010 to deposit the sum of Rs.150000/-
(Rupees One Lakh Fifty Thousand Only) by way of compensation to
respondent No.1 in the trial court failing which petitioner has to
undergo simple imprisonment for one month. It is made clear that it
will be sufficient compliance of 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 his counsel acknowledging receipt
of the amount within the period aforesaid.
Petitioner shall appear in the trial court on 12-01-2010 to receive
the sentence. Execution of warrant if any against the petitioner will
stand in abeyance till 12-01-2010.
THOMAS P JOSEPH, JUDGE
Sbna/