IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 517 of 2002()
1. V.P. JOY, VAYALATHUMPOTTAYIL HOUSE,
... Petitioner
Vs
1. E.V. JOHNY, PHILIM STUDIO,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.T.KURIAKOSE PETER
For Respondent :SRI.P.I.KESAVAN
The Hon'ble MR. Justice A.K.BASHEER
Dated :23/06/2008
O R D E R
A.K.BASHEER, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl.R.P.No.517 OF 2002
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 23rd day of June 2008
ORDER
Petitioner was tried for the offence punishable under
Section 138 of the Negotiable Instruments Act at the instance of
respondent No.1 herein. The trial court convicted and
sentenced the petitioner to undergo simple imprisonment for six
months and to pay Rs.22,000/- to the complainant as
compensation. The above order was confirmed in appeal by the
sessions court. Hence this revision petition.
2. The case of the complainant was that the accused had
issued Ext.P1 cheque in discharge of the debt which he owed in
connection with settlement of a case in C.C.440/96 on the file of
the Judicial Magistrate of First Class, Ernakulam. While the
above case was pending, the accused had paid Rs.8,000/- in
cash and issued Ext.P1 cheque for Rs.22,000/- in discharge of
the balance liability. But when the cheque was presented for
encashment, it was dishonoured due to insufficiency of funds in
the account. The statutory demand notice did not evoke any
Crl.R.P.No.517 OF 2002
:: 2 ::
response.
3. Complainant was examined as PW1 and Exts.P1 to P5
and Ext.C1 were marked in the case.
4. The defence set up by the accused was that there was
no legally dischargeable debt or liability. According to the
petitioner/accused, he had handed over a blank signed cheque
to the complainant as security in connection with a loan
transaction between the complainant and another. The trial
court as well as the appellate court did not believe the above
version given by the accused, especially since no evidence was
adduced by him to substantiate the above contention.
Significantly, the accused had admitted his signature in Ext.P1
cheque. Therefore, the courts below noticed that the accused
had not discharged the burden cast upon him. Moreover, the
presumption available under Section 139 was heavily in favour
of the complainant.
5. I have carefully perused the oral and documentary
evidence available on record and also the orders passed by the
trial court and the appellate court. In my view, the courts
Crl.R.P.No.517 OF 2002
:: 3 ::
below were justified in holding the petitioner guilty under
Section 138 of the Act. Therefore, the order of conviction is
confirmed.
But having regard to the peculiar facts and circumstances,
I am satisfied that the petitioner can be granted one more
opportunity to avoid the substantive sentence of imprisonment
imposed on him. Therefore, petitioner shall suffer
imprisonment till the rising of the court, in lieu of
imprisonment of six months imposed on him. He shall also pay
Rs.30,000/- as compensation to the complainant under Section
357(3) of the Code of Criminal Procedure. Petitioner shall
appear before the trial court on September 15, 2008 and remit
the amount of compensation. The learned Magistrate shall
ensure that petitioner undergoes imprisonment till the rising of
the court on that day. If the petitioner fails to appear and remit
the compensation, the sentence imposed on him by the trial
court shall be sustained.
(A.K.BASHEER, JUDGE)
jes
Crl.R.P.No.517 OF 2002
:: 4 ::
A.K.BASHEER, J.
– – – – – – – – – – – – – – – – – – – – – – – –
Crl.R.P.No.517 OF 2002– – – – – – – – – – – – – – – – – – – – – – – –
ORDER
Dated 23rd June 2008