IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1267 of 2001()
1. VALSAN GEORGE
... Petitioner
Vs
1. THE STATE OF KERALA
... Respondent
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice A.K.BASHEER
Dated :07/04/2008
O R D E R
A.K.BASHEER, J.
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Crl.R.P.No.1267 OF 2001
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Dated this the 7th day of April 2008
ORDER
Petitioner was prosecuted for the offence punishable under
Section 138 of the Negotiable Instruments Act at the instance of
respondent No.2 herein. The trial court found the petitioner guilty
and he was accordingly convicted and sentenced to undergo simple
imprisonment for one year and to pay a fine of Rs.5,000/- and in
default to suffer simple imprisonment for two more months.
2. In appeal, the Sessions Court, while confirming the order
of conviction, reduced the sentence to simple imprisonment for
four months. But, the direction to pay the fine amount to the
complainant was retained.
3. Though this revision petition has been pending before this
court for the last about 7 years, the complainant has not been
served with notice so far. It is conceded by the learned counsel for
the petitioner that the whereabouts of the complainant are not
known.
4. The case of the complainant was that the
petitioner/accused had borrowed a sum of Rs.35,000/- from him
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and issued Ext.P1 cheque in discharge of the said debt. But when
the cheque was presented for encashment, it was dishonoured due
to insufficiency of funds in the account of the accused. The
statutory notice issued by the complainant did not evoke any
response. Hence the complaint.
5. The complainant was examined as PW1 and Exts.P1 to P4
were marked on his side. The accused got himself examined as
DW1 and Ext.C1, ledger extract of the bank account was marked
in the case.
6. The learned Magistrate, on a careful evaluation of the oral
and documentary evidence, found that the complainant had
established his case satisfactorily. Significantly, the accused had
admitted that he had issued Ext.P1 cheque in favour of the
complainant. But according to him, the cheque was issued in order
to enable the complainant to convince his creditors that he was a
man of means. The trial court did not accept this contention
because evidently the accused had failed to substantiate the same.
It was also found by the trial court that the complainant had
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complied with all statutory requirements before launching the
prosecution.
7. The appellate court had re-evaluated the oral and
documentary evidence on record and found that the order of
conviction was legally valid and sustainable.
8. Having perused the materials available on record, I do not
find any reason to interfere with the concurrent order of
conviction. However, in the matter of sentence I am satisfied that
petitioner is entitled to get some leniency. Therefore, while
confirming the order of conviction, petitioner is afforded an
opportunity to pay off the liability since learned counsel submits
that the petitioner is prepared to do so.
Therefore, petitioner shall appear before the trial court on
August 5, 2008 and undergo imprisonment till the rising of the
court. He shall also remit Rs.40,000/- as compensation under
Section 357(3) of the Code. If the petitioner fails to appear and
remit the amount, the sentence imposed on him by the appellate
court shall stand confirmed. The amount, if any, deposited by the
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petitioner in this case shall be given credit while making the
deposit as directed.
(A.K.BASHEER, JUDGE)
jes