IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2011 of 2009()
1. V.VIJAYAKUMAR,S/O.VISWANATHAN,PROPRIETOR
... Petitioner
Vs
1. BIJU THOMAS,S/O.THOMAS,THAIYIL HOUSE,
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.P.V.BABY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/07/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.2011 of 2009
&
2012 of 2009
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Dated this 03rd day of July 2009
ORDER
Notice to respondent No.2 is dispensed with in view of the
order I am proposing to make in these revisions which is not
prejudicial to him. Heard public prosecutor who took notice for
respondent No.2.
2. These revisions arise from separate judgments of
learned Additional Sessions Judge, Kottayam in criminal appeal
No.548 of 2007 and 547 of 2007, respectively arising from
common judgment of learned Judicial Magistrate of First Class,
Erattupetta in C. C.Nos.646 of 2005 and 643 of 2005 involving
offence punishable under Sec.138 of Negotiable Instruments Act.
Petitioner faced trial in the trial court on complaints preferred by
respondent No.1 on the allegation that petitioner owed money to
him and for repayment of the amount issued the disputed cheques
which were dishonoured for insufficiency of funds. In spite of
Crl.R.P.No.2011 2
serving statutory notice to the petitioner intimating dishonour and
demanding payment of the amount, petitioner did not pay the
amount. Hence the complaints. Respondent No.1 gave evidence
as PW1 and proved Exts.P1 to P16. Petitioner gave evidence as
DW1 and examined a witness as DW2. Ext.D1 was marked on his
side. Courts below after consideration of the evidence found in
favour of due execution of the cheques. It was also found that the
cheques were dishonoured for insufficiency of funds and that
inspite of service of statutory notice petitioner failed to pay the
amount. Accordingly he was convicted as stated above.
3. So far as cause of dishonour and issue and service of
statutory notice are concerned there is no challenge before me and
the same are proved by the relevant dishonour memos and copy of
notice, postal receipts and acknowledgment cards signed by
petitioner.
4. So far as execution of the cheques are concerned,
respondent No.1 gave evidence as PW1. In C.C.No.646 of 2005,
Crl.R.P.No.2011 3
the amount involved is Rs.125000/- and in C.C.No.643 of 2005 the
amount covered by the cheque is Rs.26865/-. According to
respondent No.1, petitioner owed the said amounts to him and for
repayment issued the cheques. He stated that petitioner purchased
coconut oil from him and for the amount due, issued the cheques.
Contention raised by the petitioner is that as per agreement
between him and respondent No.1, latter used to supply coconut oil
at his business place and on such occasions, he used to give
cheques for the amount due. Once there was a complaint that
coconut oil supplied by respondent No.1 was adulterated.
Respondent No.1 thought that the scandal was spread by petitioner
and on account of that enmity misused the cheques already given.
He claimed that he did not owe any amount to respondent No.1.
He produced Ext.D1, statement said to have been given by
respondent No.1 regarding the transaction and the amount due.
When that statement was put to respondent No.1, he denied giving
any such statement. Learned magistrate observed that Ext.D1 does
Crl.R.P.No.2011 4
not contain signature of the person who issued it and that Ext.D1
did not bind respondent No.1. DW2 is a witness examined by
petitioner. He denied that he is ‘Sunny’ referred to Ext.D1. His
evidence is not in any way helpful to respondent No.1. What
remain is only evidence of petitioner as DW1.
5. So far as evidence of DW1 is concerned, he was not
able to substantiate his case. He did not reply to the statutory
notice served on him claiming the respective amounts. That would
have been the first occasion for him to set up his defence. It is
admitted by petitioner that he had business transaction with
respondent No.1 and used to give cheques for amounts due from
him. According to respondent No.1, the amount covered by the
cheques are due to him. Petitioner does not dispute that the
cheques are signed and drawn by him on the account maintained
by him. He has also not disputed that he had given the cheques
(Ext.P7 to P10) to respondent No.1. Courts below assessed the
evidence to let in by both sides and held that petitioner issued the
Crl.R.P.No.2011 5
cheques (Ext.P1, P7 to P10) in favour of respondent No.1 for
discharge of liability. There is little reason to interfere with the
concurrent finding of the fact in revision.
6. In C.C.No.646 of 2005 learned magistrate sentenced the
petitioner to undergo simple imprisonment for four months and
directed him to pay by way of compensation Rs.125000/- to
respondent No.1. There was default sentence of imprisonment for
four months. Learned Additional Sessions Judge modified the
sentence as simple imprisonment till rising of the court, fine of
Rs.125000/- and default sentence of imprisonment for two months.
In C.C.No.643 of 2005, learned magistrate sentenced the petitioner
to undergo simple imprisonment for one month. There was also
direction to pay compensation of Rs.26865/- and in default
payment to undergo simple imprisonment for one month. In appeal
sentence was modified as simple imprisonment till rising of the
court, fine of Rs.26865/- and default sentence of imprisonment for
one month.
Crl.R.P.No.2011 6
7. Learned counsel requested that the fine awarded may be
converted as compensation payable to respondent No.1 directly.
He also requested that petitioner may be granted four months’ time
for payment of compensation since petitioner is facing financially
difficult situation and is unable to raise the amount immediately.
8. Having regard to the nature of the offence and object of
legislation I am satisfied that substantive sentence as modified by
the appellate court and direction for payment of compensation is
sufficient in the ends of justice. Considering the circumstances
stated by the learned counsel petitioner is granted four months’
time from today to deposit compensation.
Resultantly these revisions are allowed in part to the
following extent:
(a) Crl.R.P.No.2011 of 2009
(i) while retaining the substantive sentence as modified by
learned Additional Sessions Judge, sentence of fine is
set aside. Instead, petitioner is directed to deposit in the
Crl.R.P.No.2011 7
trial court for payment to respondent No.1 within four
months from this day Rs.125000/- (Rupees One Lakh
Twenty Five Thousand Only) as compensation failing
which he shall undergo simple imprisonment for four
months.
(b) Crl.R.P.No.2012 of 2009
(ii) while retaining the substantive sentence as modified by
the learned Additional Sessions Judge, sentence of fine
is set aside. Instead, petitioner is directed to deposit in
the trial court for payment to respondent No.1
Rs.26865/- (Rupees Twenty Six Thousand Eight
Hundred and Sixty Five Only) by way of compensation
within four months from this day failing which he shall
undergo simple imprisonment for two months.
(c) It is made clear that it will be sufficient compliance with the
directions above made for deposit of compensation if
petitioner paid the compensation to respondent No.1 through
Crl.R.P.No.2011 8
his counsel in the trial court and respondent No.1 filed
statement in the trial court through his counsel
acknowledging receipt of compensation within the aforesaid
time.
(d) It is made clear that in case of default in paying compensation
as aforesaid, petitioner has to undergo the default sentence as
above stated which will run consecutively.
Petitioner shall appear in the trial court on 06-10-09 to
receive the sentence.
THOMAS P JOSEPH, JUDGE
Sbna/