IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 388 of 2010()
1. SUNIL.K.EASO, S/O.THANKAPPAN,
... Petitioner
Vs
1. K.M.JOHNY, S/O.MATHAI,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.A.K.HARIDAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :01/02/2010
O R D E R
V.K. MOHANAN, J.
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Crl. R.P. No. 388 of 2010
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Dated this the 1st day of February, 2010
O R D E R
This Criminal Revision Petition is directed against the
judgment dated 27-04-2009 of the Judicial First Class
Magistrate Court III, Kanjirappilly in S . T . Case .
No. 608 / 2006 and the judgment dated 07-09-2009 of
the Lower Appellete Court in Criminal Appeal No.
202/2009. By the above judgment, the court below
convicted the revision petitioner for the offence
punishable under Section 138 of the Negotiable
Instruments Act and accordingly he is sentenced.
2. The first respondent is the complainant.
According to him, on 20-06-2006 the revision petitioner
had obtained a loan of Rs. 1,00,000/- from him and
towards the discharge of the said liability, the accused
issued a cheque dated 18 -07 – 2006 for a sum of
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Rs. 1,00,000/-. When the cheque was presented for
encashment, it was dishonored for want of sufficient fund.
Consequently the complainant had caused to sent a
lawyer notice to the revision petitioner / accused
intimating him about the dishonor of cheque and further
demanding him to pay the amount covered by the
cheque. As there was no payment, he approached the
court below by filing a formal complaint upon which
cognizance was taken and instituted in S.T. Case No.
608/2006 in the Judicial First Class Court III
Kanjirappilly. During the trial, the complainant was
examined as PW 1 and Exhibit P1 to P6 were marked. No
evidence, either documentary or oral, was adduced from
the side of the defence. On the basis of the evidence and
materials adduced before the trial court, it is found that
the revision petitioner is guilty of the offence under
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Section 138 of the Negotiable Instruments Act and
accordingly the accused/revision petitioner is sentenced
to undergo simple imprisonment for 6 months and further
ordered to pay a sum of Rs. 1,00,000/- as
compensation under Section 357 (3) of Cr.P.C and in
default of payment of the compensation, it was ordered to
undergo simple imprisonment for 2 months.
3. Aggrieved by the order of conviction and
sentence the accused / revision petitioner preferred
Crl.R.P 202/2009 which was disposed of by the Court
below by its judgment dated 07-09-2009. While disposing
of the appeal, Lower Appellate Court confirmed the
conviction, but the sentence was modified and reduced to
one month simple imprisonment. The direction to pay the
compensation is maintained. It is the above conviction
and sentence are challenged in this revision petition.
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4. I have heard the learned counsel appearing for the
revision petitioner, who submitted that the revision
petitioner, was the owner of a bus in which the
complainant had worked as a driver and his son was also
given a job in the bus service during the year 2002 and
that job was given on deposit of a sum of Rs. 15,000/- as
security and at that time, a blank cheque was given to the
son by way of security for repayment and it was the said
cheque misused by the complainant for filing the
complaint.
5. From the judgment of the court below it can be
seen that when PW1 was examined before the court below
he had categorically deposed about the transaction.
Admittedly, there is no dispute regarding the signature
contained in the cheque in question. According to the
revision petitioner, the cheque was given only as a
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security for the repayment of the amount. The court
below found that the above case of the defence has not
been substantiated and no evidence adduced, during trial
to probabilise the above version of the defence. The court
below has also found that though a statutory notice was
issued to the accused and the same was received by him,
no proper reply was issued. Thus it can be seen that the
defence story was put forward by the defence for the
first time only at the time of trial. If it was correct, the
same could have been stated at appropriate time only by
way of reply to the statutory notice. Thus on the basis of
the above facts and situation and based upon the evidence
and materials on records, the trial court found that the
revision petitioner is guilty of the offence charged against
him. Therefore I find no reason to interfere with the
order of conviction passed by the courts below.
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6. Learned counsel for the revision petitioner
submitted that some leniency may be shown in favour of
the revision petitioner in the matter of sentence as he has
no sufficient income. Based on the facts and
circumstances involved in the matter, I am of the view
that some modification can be effected with respect to the
sentence and breathing time can be granted to make the
payment as ordered by the court below.
7. In the result this revision petition is disposed of
confirming the conviction but reducing the sentence of
imprisonment from one month to one day, ie. till the rising
of the court and is further directed to make the payment
of compensation amount awarded by the court below
within one month on the date on which he appears for
receiving the sentence. The revision petitioner is directed
to appear before the trial court on 15-03-2010 to
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receive the sentence and to make the payment of the
compensation amount fixed by the court below. If the
petitioner fails to comply with the above direction, the
trial court is free to take coercive steps to procure the
presence of the revision petitioner and to execute the
sentence and to realise the compensation amount as
ordered.
Revision petition is disposed of accordingly.
V.K. MOHANAN, JUDGE
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