IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1859 of 2009() 1. V.G. ASOKAN, AGED 42 YEARS, ... Petitioner Vs 1. THRESSIAMMA, THEKKAN HOUSE, ... Respondent 2. STATE OF KERALA, REPRESENTED BY THE 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 ORDER
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.
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
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
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
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.
THOMAS P. JOSEPH, JUDGE