High Court Kerala High Court

Venugopal vs E.K.John on 17 July, 2009

Kerala High Court
Venugopal vs E.K.John on 17 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1865 of 2009()


1. VENUGOPAL, S/O.KRISHNAN NAIR,
                      ...  Petitioner

                        Vs



1. E.K.JOHN, S/O.KORA,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.K.J.JOSEMON

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :17/07/2009

 O R D E R
                            THOMAS P. JOSEPH, J.
                           --------------------------------------
                             Crl.R.P.No.1865 of 2009
                           --------------------------------------
                     Dated this the 17th day of July, 2009.

                                        ORDER

Notice to respondent No.1 is dispensed with in view of the order I am

proposing to pass in this revision which is not prejudicial to him. Public

Prosecutor takes notice for respondent No.2.

2. This revision is in challenge of judgment of learned Sessions

Judge, Thodupuzha in Crl.Appeal No.245 of 2007 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,

there was an agreement for sale of his property between himself and petitioner

fixing the sale consideration at Rs.4,50,000/-, property was sold for that

consideration to the petitioner and in that transaction, a sum of Rs.1,45,000/- is

outstanding to be paid to him. Petitioner issued Ext.P1, cheque dated

22.8.2005 for payment of that amount. That cheque was dishonoured for

insufficiency of funds as proved by Exts.P2 and P3. Statutory notice was

served on petitioner as proved by Exts.P4 to P5. According to the petitioner,

he purchased the property from respondent No.1 for a total consideration of

Rs.3,40,000/-. Before that, he had borrowed Rs.15,000/- from respondent No.1

and given two signed blank cheques as security. The understanding was that

he would repay the said sum of Rs.15,000/- in instalments of Rs.1,050/- per

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month. Petitioner has paid Rs.15,000/- and the balance amount payable was

only Rs.6,000/-. Misusing one of the signed blank cheques respondent No.1 has

preferred the complaint. Respondent No.1 gave evidence as PW1. PW2 has

given evidence in favour of respondent No.1. Ext.P6 is the copy of agreement

for sale executed between petitioner and respondent No.1 on 23.12.2004.

Petitioner gave evidence as DW1 and spoke to his case. DW2 is a witness

examined by petitioner. DW2 stated that petitioner and respondent No.1 are

known to him, the latter is a money lender who used to advance loans on the

security of documents of vehicle. It is the further version of DW2 that

petitioner had purchased property belonging to respondent No.1 for a total

consideration of Rs.3,40,000/-. Petitioner had availed a loan of Rupees three

lakhs from the bank and paid that amount to respondent No.1 as part of the sale

consideration. DW2 claimed that respondent No.1 had told him that he had

given some time to the petitioner to pay the balance sum of Rs.40,000/-

(towards the sale consideration). On the side of petitioner apart from Exts.D6

and D7, the reply notice and acknowledgment card referred to above, Exts.D1 to

D5 were also marked. Ext.D2 is a complaint preferred by the petitioner to the

local police stating that balance amount payable to respondent No.1 is only

Rs.6,000/- and that the latter attacked him. Ext.D3 is the copy of the complaint

register where it is endorsed that since respondent No.1 had already taken the

matter to the court, parties could agitate the issue in court. Ext.D4 is the copy of

the title deed. It is contended by learned counsel that evidence on record is not

Crl.R.P.No.1865/2009

3

sufficient to warrant a conclusion that petitioner issued the cheque for discharge

of a legally enforceable debt/liability. Learned counsel also referred to what is

described as contradictory findings entered by the appellate court originally

before the case was remitted and the appellate judgment under challenge in

this revision as to the writings in Ext.P1, cheque.

3. The crucial question is whether petitioner has issued the cheque for

discharge of a legally enforceable debt/liability. Exts.D2 and D3 will not help

the petitioner since it is seen that Ext.P1, cheque is dated 22. 8.2005 and

Ext.D2, complaint was preferred by petitioner to the police on the same day. It

is seen from Ext.P6, agreement for sale dated 23.12.2004 admittedly executed

between the petitioner and respondent No.1 that 16 cents and house belonging

to respondent No.1 was agreed to be purchased by petitioner for a total

consideration of Rs.4,50,000/-. It is admitted by the petitioner that he has

executed Ext.P6, produced the same in the bank and on the strength of that,

raised a loan for payment of the sale consideration. Ext.D4, copy of the

assignment deed in favour of petitioner states that sale consideration stated

therein is only Rs.75,000/-. It is admitted by both sides that actual sale

consideration is not Rs.75,000/- as stated therein. Then Ext.P6 shows that it is

Rs.4,50,000/-. Even as per petitioner, he raised a loan of Rupees three lakhs

from the bank for payment of sale consideration on the strength of Ext.P6 and

paid that amount to respondent No.1. Thus it is clear that the actual sale

consideration was Rs.4,50,000/- and only Rs.3,00,000/- was paid to respondent

Crl.R.P.No.1865/2009

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No.1 and a sum of Rs.1,50,000/- was due to respondent No.1. Ext.P1, cheque

is only for Rs.1,45,000/-. It is not disputed that Ext.P1 contained the signature of

the petitioner, is drawn on his account and he had entrusted the same to

respondent No.1. Evidence of respondent No.1 regarding due execution of the

cheque gets corroboration from Ext.P6 as well. In these circumstances, I do not

find reason to interfere with the finding of courts below as to the due execution

of Ext.P1 and failure of petitioner to rebut the presumption under Section 139

of the Act

4. Learned magistrate sentenced the petitioner to undergo simple

imprisonment for three months. There was a direction for payment of

compensation of Rs.1,50,000/- to respondent No.2 with default sentence of

imprisonment for two months. Appellate court did not interfere with the

sentence. Learned counsel submits that the sentence awarded is excessive.

Learned counsel requested that petitioner may be granted six months’ time to

pay compensation.

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 learned magistrate is sufficient in the ends of justice.

Considering all relevant facts, the amount involved and the fact that substantive

sentence is being modified, I direct that in case of non-payment of

compensation petitioner has to undergo simple imprisonment for five months.

Considering the financial difficulty of the petitioner expressed by learned

Crl.R.P.No.1865/2009

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counsel, petitioner is granted time till 30.12.2009 to deposit compensation.

Resultantly, this revision is allowed in part to the following extent:

i. Substantive sentence awarded to the petitioner is

modified as simple imprisonment till rising of the court.

ii. Petitioner is granted time till 30.12.2009 to deposit

compensation as directed by learned magistrate for payment to

respondent No.1. In case of failure, petitioner has to undergo

simple imprisonment for five months.

iii. It is made clear that it will be sufficient compliance of

the direction for deposit of compensation if petitioner paid

compensation to respondent No.1 through his counsel in the trial

court and respondent No.1 filed a statement in the trial court

through his counsel acknowledging receipt of compensation within

the above said period.

Petitioner shall appear in the trial court on 31.12.2009 to receive the

sentence. Execution of warrant if any against the petitioner will stand in

abeyance till 31.12.2009. Registry is directed to send the records to the trial

court.

THOMAS P.JOSEPH,
Judge.

cks