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.
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Crl.R.P.No.1865 of 2009
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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
Crl.R.P.No.1865/2009
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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
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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
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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
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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