IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 167 of 2007()
1. V.I.THOMAS, S/O.ITTY,
... Petitioner
Vs
1. P.C.THOMAS, BEDHANYA HOUSE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.JAIJI ITTEN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :12/01/2007
O R D E R
R.BASANT, J
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Crl.R.P.No.167 of 2007
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Dated this the 12th day of January 2007
O R D E R
This revision petition is directed against a concurrent
verdict of guilty, conviction and sentence in a prosecution under
Section 138 of the Negotiable Instruments Act.
2. The cheque is for an amount of Rs.2,31,500/-. The
signature in the cheque is admitted. Notice of demand though
duly received and acknowledged did not evoke any response.
The complainant examined himself as PW1 and proved Exts.P1 to
P8. It would appear that the crux of the contention raised by
the accused is that there has been discharge of an amount of
Rs.1,90,000/- after receipt of the notice. The complainant
admitted partial discharge but contended that only an amount of
Rs.1,40,000/- has been paid. But the crux of the issue before the
court below was whether an amount of Rs.41,500/-, as contended
by the petitioner or an amount of Rs.91,500/- as contended by
the complainant was actually due. The courts below considered
the materials available on record and chose to accept and act
upon the oral evidence of PW1. They did not choose to rely on
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the oral evidence of DW1 about the discharge without voucher of
the amount of Rs.1,90,000/-. The plea that there was discharge
of an amount of Rs.1,40,000/- only was accepted and the court
directed payment of the balance amount of Rs.91,500/-. The
petitioner claims to be aggrieved by the impugned concurrent
judgments. The appellate court had indulgently modified the
sentence into one of imprisonment till rising of court and to pay
an amount of Rs.91,500/- and in default to undergo S.I for a
period of one month.
4. Called upon to explain the nature of the challenge
which the petitioner wants to mount against the impugned
concurrent judgments, the learned counsel for the petitioner
first of all contends that the courts below have erred perversely
in coming to a conclusion that only an amount of Rs.1,40,000/-
has been paid. In fact, an amount of Rs.1,90,000/- was paid. In
the nature of the evidence that is available, I find absolutely
nothing to interfere with the concurrent findings recorded by the
courts below that only an amount of Rs.1,40,000/- has been paid.
The oral evidence of DW1 unsupported by any voucher for such
alleged discharge was, according to me, rightly not accepted by
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the courts below. At any rate, sitting as the third court – of
revision exercising supervisory and correctional jurisdiction, I
find no reason to interfere with the concurrent conclusion that
the evidence of PW1 has to be preferred to that of DW1 on the
question of the quantum of discharge.
5. No other serious contentions appear to have raised
before the courts below, going by the impugned judgments. The
learned counsel for the petitioner points out that statutory
timetable has not been followed. He further contends that there
is inaccuracy in the description of the cheque in the body of the
complaint and the appendix to the complaint.
6. What is there to show that the statutory timetable has
not been followed? Why was that contention not raised before
the court below? The learned counsel for the petitioner
submits that this is a question of law and therefore even if it is
not raised before the courts below, it can be urged before the
court of revision. The learned counsel was requested to
substantiate the said contention. The only submission made at
the Bar and in the memorandum of revision is that the copy of
the complaint furnished to the accused does not show the date of
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the complaint. This is too inadequate a circumstance to accept
the contention of the learned counsel for the petitioner that the
statutory timetable has not been followed.
7. Similarly, the alleged incongruity (I say alleged
because even the copy of the complaint has not been produced)
in the number and date of the cheque in the body of the
complaint and the appendix to the complaint, cannot, deliver any
advantage to the petitioner at this belated hour when the
contention that the complaint is belated is not seen specifically
raised before the court below and no attempt is made before this
court to substantiate that contention not raised before the courts
below. No dispute about the identity of the cheque was raised
before the courts below admittedly.
8. In these circumstances, I find absolutely no merit in
the challenge raised against the impugned verdict of guilty and
conviction. The learned Additional Sessions Judge has shown
maximum leniency possible and permissible. In the given
circumstances, I do not find any space for further indulgence or
leniency.
9. Finally, the learned counsel for the petitioner prays
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that a reasonable time may be granted to the petitioner to pay
the amount and avoid the default sentence. I am satisfied that a
reasonable further time can be granted to the petitioner and this
request can be accepted. In the nature of the relief which I
propose to grant, it is not necessary to wait for issue and return
of notice to the respondent.
10. In the result, this revision petition is dismissed but
with the observation that the sentence shall not be executed
against the petitioner till 15/03/2007. The petitioner shall
appear before the learned Magistrate on that date to serve the
modified sentence hereby imposed. If the petitioner does not so
appear before the learned Magistrate, the learned Magistrate
shall thereafter proceed to execute the modified sentence hereby
imposed.
Hand over copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006