V.G. Asokan vs Thressiamma on 15 June, 2009

Kerala High Court
V.G. Asokan vs Thressiamma on 15 June, 2009




Crl.Rev.Pet.No. 1859 of 2009()

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.K.V.SABU

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :15/06/2009

 O R D E R
                    THOMAS P. JOSEPH, J.
                   Crl.R.P.NO.1859 OF 2009
                Dated this the 15th day of June, 2009


Public Prosecutor takes notice for respondent No.2. Notice

to respondent No.1 is dispensed with in view of the order I am

proposing to make which is not prejudicial to her.

2. This revision is in challenge of judgment of learned

Additional Sessions Judge (Adhoc-III), North Paravur in Crl.

Appeal No.747/2008 confirming conviction and sentence of

petitioner for offence punishable under Section 138 of the

Negotiable Instruments Act (for short, “the Act”). According to

respondent No.1, petitioner borrowed Rs.75,000/- (Rupees

seventy five thousand only) from her and for repayment of that

amount, issued Ext.P1, cheque dated 23.6.2003. That cehque

was dishonoured for insufficiency of funds as proved by Ext.P2,

memo dated 11.7.2003. Respondent No.1 issued statutory

notice to the petitioner on 15.7.2003 intimating dishonour and

demanding payment of the amount covered by the cheque.

Crl.R.P.No.1859/09 2

Ext.P4 is the receipt for sending the notice by registered post

on 24.7.2003. Ext.P5 shows that notice was served on the

petitioner on 26.7.2003. Petitioner sent Ext.P6, reply dated

29.7.2003. Respondent No.1 gave evidence as PW1 and

asserted that petitioner borrowed Rs.75,000/- from her and

issued the cheque. Contention raised by petitioner in Ext.P6,

reply and when questioned under Section 313 of the Code of

Criminal Procedure is that he had subscribed to a ‘kuri’

conducted by one Anitha, wife of a constable of Aluva Police

Station, he prized the kuri and gave a signed blank cheque as

security. Respondent No.1 is only a benami for the wife of

police constable, misused the cheque and filed a complaint.

Courts below held that apart from merely suggesting so and

sending a reply to respondent No.1, no attempt was made by

petitioner to substantiate or even probabilise his contention.

3. That, Ext.P1 contained the signature of petitioner

and is drawn on the account maintained by him are not

challenged before me and proved by respondent No.1.

According to the petitioner, he handed over the cheque to

Anitha but as rightly pointed out by the courts below what is

available in that regard is only the assertion made by

Crl.R.P.No.1859/09 3

petitioner which respondent No.1 denied with equal

vehemence. She asserted that petitioner borrowed

Rs.75,000/- from her and issued the cheque. When an

instrument which created liability on petitioner is produced by

respondent No.1 and there is nothing on record to disbelieve

the version of respondent No.1, mere fact that a reply is given

to the statutory notice and some suggestions in that line are

put to the payee under the cheque are not sufficient.

Petitioner could not discredit the version of respondent No.1.

There is no reason to disbelieve the evidence of respondent

No.1 regarding the transaction and execution of the cheque.

Courts below have considered the evidence and found that

petitioner issued the cheque for the discharge of the legally

enforceable debt/liability and that he failed to rebut the

presumption under Section 139 of the Act. Conviction of the

petitioner in the circumstances required no interference.

4. Petitioner was sentenced to undergo Simple

Imprisonment for six months. He was directed to pay

compensation of Rs.75,000/-. There is also a default sentence

for 60 days. Learned counsel requested that sentence may be

modified. He also requested six months’ time to deposit

Crl.R.P.No.1859/09 4

compensation in the trial court.

5. Considering the nature of offence and the object of

legislation, I am satisfied that Simple Imprisonment till rising

of the court and compensation as awarded by the courts below

with default sentence of three months is sufficient in the ends

of justice. Considering the circumstances stated by learned

counsel as to the difficulty of petitioner to raise the amount

immediately, petitioner is granted three months’ time from

today to deposit compensation in the trial court.

Resultantly this revision is allowed in part to the following


i) Substantive sentence awarded to the petitioner is

modified as Simple Imprisonment till rising of the court.

ii) Petitioner is granted three months’ time from today

to deposit Rs.75,000/- (Rupees seventy five thousand only) by

way of compensation for payment to respondent No.1, in the

trial court. In case of failure, petitioner shall undergo Simple

Imprisonment for three months.

iii) It is made clear that it will be sufficient compliance

with the direction for payment of compensation if petitioner

paid the compensation to respondent No.1 through his counsel

Crl.R.P.No.1859/09 5

in the trial court and respondent No.1 filed a statement in the

trial court through her counsel within the said period of three

months acknowledging receipt of compensation.

iv) Petitioner shall appear in the trial court on

18.8.2009 to receive the sentence.



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