IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 CRL.REV.PET.NO. 1702 OF 2009() ------------------------------ CRA.284/2007 OF SESSIONS COURT, THODUPUZHA ST.7/2007 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------- SHAMEER KALARIKUDIYIL,NOW RESIDING AT PADIPURACKEL KUMBAKALLU,THODUPUZHA EAST P.O. IDUKKI DISTRICT. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------------------------------------------- 1. MRS.LEELAMMA,VARGHESE, KAROTTUKUNNEL HOUSE,KALAYANTHANI P.O. ANCHIRIKAVALA THODUPUZHA IDUKKI DISTRICT. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1702 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of June, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Sessions Judge, Thodupuzha in Crl. Appeal No.284 of 2007 confirming conviction, sentence and direction for payment of compensation imposed on the petitioner in a case involving offence punishable under Section 138 of the Negotiable Instruments Act (Fort short, “the Act”). According to respondent No.1, petitioner borrowed Rs.20,000/- on 5.5.2006 and issued cheque dated 6.7.006 which was dishonoured for insufficiency of funds on 22.9.2006. Though statutory notice intimating dishonour and demanding payment was served on the petitioner on 30.6.2006 he did not pay the amount. Respondent No.1 gave evidence as P.W.1 and proved Exts.P1 to P5. Dishonour of the cheque for reason stated above and service of notice are not challenged before me. Challenge in this revision is only to the finding regarding due execution of the cheque and failure of petitioner to rebut the presumption under Sec.139 of the Act. Case of petitioner is that he borrowed only Rs.5,000/- and gave a signed blank cheque. But it would appear that in the cross examination of respondent No.1 it was suggested to him that the cheque does not contain the signature CRL. R.P. No.1702 of 2009 -: 2 :- of petitioner. It was also suggested that unsigned blank cheque was given to respondent No.1. Learned magistrate observed that no prudent man would take an unsigned blank cheque. Exhibit D1, copy of S.S.L.C. Book produced by the petitioner did not in any way affect the case of respondent No.1 since that certificate was produced only to show the place of residence of petitioner. Respondent No.1 in her evidence stated that she shifted her residence about 15 hears back while Ext.D1 is of the year 2001. There is no evidence to show that petitioner had borrowed Rs.5,000/- only and given signed or unsigned blank cheque as stated by the petitioner. Contention raised by the petitioner is not proved or probabilised. Respondent No.1 has given evidence regarding the execution of the cheque. That evidence is not shown to be untrustworthy. It is pertinent to note that petitioner did not reply to the statutory notice. There is no merit in the contention of the petitioner. There is nothing illegal, irregular or improper in the finding entered by the courts below so as to interfere with the conviction 2. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one month. Petitioner was directed to pay compensation of Rs.25,000/- and in default in payment to undergo CRL. R.P. No.1702 of 2009 -: 3 :- simple imprisonment for two months. Appellate court did not interfere with the conviction and sentence. Learned counsel argued that sentence is excessive. Having regard to the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time compensation awarded can be converted as fine of Rs.25,000/- and in default of payment to undergo simple imprisonment for two months as ordered by the learned magistrate and confirmed by the appellate court. 3. Learned counsel for petitioner requested three months’ time to deposit the fine in the trial court. Having regard to the amount involved and other circumstances stated by counsel for petitioner I am inclined to grant two months’ time from this day to the petitioner to deposit fine. Resultantly, this revision is allowed in part to the following extent: (i) Substantive sentence awarded by the courts below is modified as simple imprisonment till rising of the court. (ii) Direction for payment of compensation is set aside. Petitioner is CRL. R.P. No.1702 of 2009 -: 4 :- sentenced to pay fine of Rs.25,000/- (Twenty five thousand only) in the trial court within two months from this day failing which petitioner shall undergo simple imprisonment for two months. (iii) Fine if realised shall be given to respondent No.1 as compensation under Section 357(1) of the Code of Civil Procedure. Petitioner shall appear in the trial court on 4.8.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv RP 1702 This revision is in challenge of the judgment of the learned Sessions Judge in Crl. Appeal No. confirming conviction, sentence and direction for payment of compensation imposed on the petitioner in a case involving offence punishable under Section 138 of the Negotiable Instruments Act (Fort short, “the Act”). According to respondent No.1 petitioner borrowed Rs.2,00,000/- on 5.5.2006 and issued cheque dated 6.7.006 which was dishonoured for insufficiency of funds on 22.9.2006. Though statutory notice intimating dishonour and demanding payment was served on the petitioner on 30.6.2006 he did not pay the amount. Respondent No.1 gave evidence as P.W.1 and proved Exts.P1 to P5. Dishonour of the cheque for the reasons stated above and service of notice are not challenged before me. Challenge in this revision is only as to the finding regarding due execution of the cheque and failure of petitioner to rebut the presumption under Sec.139 of the Act. Case of petitioner is that he borrowed only Rs.5000….. and gave a signed blank cheque. But it would appear that in the cross examination of respondent No.1 it was suggested to him that the cheque does not contain the signature of petitioner. It was also suggested that unsigned blank cheque was given to respondent. Learned magistrate found that no prudent man take an unsigned blank cheque. Exhibit D1 copy of S.S.L.C. Book produced by the petitioner did not in any way affect the case of respondent No.1 since that certificate was produced only to show the place of residence of the petitioner. Respondent No.1 in her evidence stated that she referred top her residence about 15 hears back while Ext.D1 is of the year 2001. There is no evidence to show that petitioner had borrowed Rs.5000 and gave signed or unsigned blank cheque as stated by the petitioner. It is pertinent to note that petitioner did not reply to the statutory notice. There is nothing illegal, irregular or improper so as to interfere with the conviction Learned magistrate sentenced the petitioner to undergo simple imprisonment for one month. He was directed to pay compensation of Rs.25,000/- and in default in CRL. R.P. No.1702 of 2009 -: 6 :- payment to undergo simple imprisonment for two months. Appellate court did not interfere with the conviction and sentence. Having regarding the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time compensation awarded can be converted as fine of Rs.25,000/- and in default of payment to undergo simple imprisonment for two months as ordered by the learned magistrate and confirmed by the appellate court. Learned counsel for petitioner requested three months’ time to deposit the fine in the trial court. Having regard to the amount involved and other circumstances stated by counsel for petitioner I am inclined to grant two months’ time from this day to the petitioner to deposit fine. Resultantly, this revision is allowed in part to the following extent: Substantive sentence awarded by the courts below is modified as simple imprisonment till rising of the court. Petitioner is sentenced to deposit fine of Rs.25,000/- (Twenty five thousand only) in the trial court for payment to respondent No.1 in the trial court within two months from this day failing which petitioner shall undergo simple imprisonment for two months. Fine if realise shall be given to respondent No.1 as compensation under Section 357(1) of the Code of Civil Procedure. CRL. R.P. No.1702 of 2009 -: 7 :- Zrp4988 Public Prosecutor take notice for respondent No.1. Notice to respondent Nos.2 to 6 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Challenge in this revision is to the acquittal of respondent Nos.2 to 6 for the offences punishable under Sections 143, 147, 341 and 323 read with 149 of the Indian Penal Code. Case was registered on the information given by the petitioner/de facto complainant. Case is that on 3.9.1991 at about 6.45 p.m. respondent Nos.2 to 6 formed an unlawful assembly armed with deadly weapons of the road in front of the house of petitioner and wrongfully restrained petitioner and voluntarily caused hurt to him. When P.W.2, wife of petitioner came there she was pushed aside. This was originally closed following the decision in Raj Deo and in revision this Court set aside the acquittal. Case was sent back for trial. At that time stick and stone allegedly seized by the police from the scene of occurrence were produced before the court, but court did not obstruct. However evidence of prosecution was recorded. Petitioner as P.W.1 and his wife as P.W.2 gave evidence regarding the alleged incident. P.W.3 was examined to prove the incident. He refused to support the prosecution. P.SW.4 examined P.Ws.1 and 2 and issued Exts.P3 and P5. Evidence is that petitioner suffered tenderness and swelling and pain on joint. P.W.9 registered the case. It came in evidence that in the very same incident respondent no.3 sustained injuries and underwent inpatient treatment in the local public health centre. Following that case has been CRL. R.P. No.1702 of 2009 -: 8 :- registered against the petitioner for offence punishable under Sections 341 and 354 of the Code. That case was also investigated by the very same police and that resulted in final report. Exhibits D1 to D3 are the certified copies of the first information statement given by respondent No.3, first information report and chare respectively in that case. It has also come in evidence that though the primary health centre where respondent No.3 went inpatient treatment …..P.W.s 2 and 3 took a fair way hostile explanation being that they learnt that respondent No.3 is undergoing treatment in the local primary health centre. According to P.W.3 lot people and respondents 2 to 6 were assembled there and witnessed the incident. But no independent witness was examined by the prosecution. P.W.L3 is admittedly the domestic servant of the petitioner, who also refused to support the prosecution. It is on a consideration of such evidence that learned magistrate found that it is not safe to place reliance on the petitioner so as convict respondent Nos.2 to 4. This Court in revision is concerned only whether the acquittal has resulted in glaring injustice arising from violation of fundamental principles of law or acquittal is involving defect of procedure or manifest error so that revisional court can interfere. On going through the judgments under challenge and hearing counsel I am not satisfied that any such situation or circumstance arise in this case. As such acquittal of respondents 2 to 4 does not require interference. Resultantly, revision fails. It is dismissed. Rp 37 Respondent No.1 filed a petition before the Sub Divisional Magistrate, Thiruvananthapuram stating that petitioner is causing nuisance to him and others and taking lorry loads of earth through the road adjacent to his house causing danger to life and property and due to the heavy traffic a 11 KV electric post situated near his house has been slanted exposing danger. He also alleged that cracks have been developed on the walls of the house and compound. Sub Divisional Magistrate enquired the matter through the Village Officer. Village Officer submitted a report Based on that report Sub Divisional Magistrate issued a conditional order under Section 133(1) of the Code of Criminal Procedure (for short, “the Code”). Notice was issued to the petitioner either to comply with that order or to show cause whey that order should not be made absolute. Petitioner filed counter statement taking various allegations. It would appear that the matter was posted thereafter. But counsel for petitioner requited for time. But the Sub Divisional Magistrate issued the impugned order. Learned counsel for petitioner contended that going by the report of the Village Officer the matter does not come within the purview of Sec.133(1) of the Code. It is also contended that at any rate the Sub Divisional Magistrate was not correct in passing the order on the basis of the report of the Village Officer. Respondent No.1 supported the impugned order. I am not going into the correctness of the report submitted by the Village Officer and whether it supported the averments in the complaint preferred by respondent No.1. CRL. R.P. No.1702 of 2009 -: 9 :- Whether the report of the Village Officer attracted any provisions of Sec.133(1) of the Code is certainly a matter which the Sub Divisional Magistrate has to consider As it now stands the impugned order is passed without conducting enquiry under Sec.133(1) of the Code. If it is a case where any public road/public nuisance is involved, that may have to be enquired as contemplated under Section 138 of the Code as well. Sub Divisional Magistrate can pass conditional order based on the report of the Village Officer. That by itself is not evidence under Sec.138 of the Code. Proper course should be to examine the Village Officer and prove the report as part of the enquiry under Sec.138 of the Code. That having been not done, the order under challenge cannot be stand. Learned counsel for petitioner submitted that since the order was found to be prima facie illegal its operation was stayed and stay is in force for the last 8 years and now the matter has become infructuous. That is a matter to be looked into by the Sub Divisional Magistrate for the reasons stated above. Resultantly, revision is allowed. Impugned order is set aside and the matter is remitted to the learned Sub Divisional Magistrate for fresh consideration in compliance with the provisions of Chapter XB of the Code. Rp 410 Respondent No.1 though served remains absent. I heard learned counsel for petitioner and Public Prosecutor who took notice for respondent No.2. This revision is directed against the judgment of the learned Sessions Judge in Crl.Appeal No.84 of 199 confirming the conviction and sentence imposed on the petitioner under Section 138 of the Negotiable Instruments Act (for short “the Act”). According to respondent No.1 petitioner borrowed Rs.30,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 2.4.1996. Dishonour of cheque for insufficiency of funds as contended by respondent No.1 is proved by Ext.P2. Issue and service of statutory notice intimating dishonour and demanding payment are proved by Exts.. That notice was returned unclaimed. Respondent No.1 gave evidence s P.W.1 and spoke to his case. According to petitioner he has borrowed only Rs.15,000/- from respondent No.1 and later repaid Rs.5,000/-. The signed blank cheque given at that time has been misused. Court below concurrently found in favour of due execution of cheque and that there is due service of notice on the petitioner. Learned counsel for petitioner contended that the finding of the courts below as to due execution of cheque is not correct. So far as due execution of cheque courts below on the evidence of P.W.1 found in favour of that. I do not find reason to interfere with that finding. Petitioner has not CRL. R.P. No.1702 of 2009 -: 10 :- rebutted the presumption under Sec.139 of the Act. What remains for consideration is only regarding service of statutory notice. Exhibit P3(a) notice was issued by registered post. Learned magistrate has observed that there is no quarrel as to the address of the … petitioner given in Ext.:P3 and that Ext.P4 revealed that intimation was given to the petitioner. I have perused Ext.P4 and it contains the endorsement of the postman on 13/4, petitioner was intimated about the registered notice but it was not claimed and hence it is returned. That amounted to service of notice and refusal to claim the notice it is due service of notice. Section 27 of the General Clauses Act also come in aid of respondent No.1. Learned magistrate observed that summons issued from that court to the petitioner in the address mentioned in Ext.P3 and P4 was received by the petitioner. Hence the contention that there is no due service of notice cannot stand. Conviction does not required interference. So far as the sentence is concerned, it is contended by learned counsel for petitioner that it is excessive. Considering the facts of the case and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time petitioner has to compensate respondent No1. Revisional court is entitled to direct payment of compensation under Section 357(4) of the Code of Criminal Procedure. Exhibit P1, cheque is dated 2.4.1996. Thirteen years have elapsed. Considering these aspects I direct the petitioner to pay a compensation of Rs.40,000/- within three months from this day failing which he shall undergo simple imprisonment for three months. Resultantly, revision is allowed in part to the following extent: Substantive sentence awarded by the courts below is modified as simple imprisonment till rising of the court. Petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.40,000/- (Rupees Forty thousand only) within three months from day failing which he shall undergo simple imprisonment for three months. If petitioner has deposited any amount in any of the courts below pursuant to the order of this Court that amount will be adjusted in the compensation directed to be deposited hereby. Petitioner shall appear in the trial court on 3.9.2009 to receive the sentence. CRL. R.P. No.1702 of 2009 -: 11 :- Rpfc 198 Petitioner is challenging the order of maintenance awarded in favour of respondent at the rate of Rs.1,000/- per month. Respondent claimed that petitioner married her on 26.5.1996 in accordance with the customary rites. But no children are born in that wedlock. Respondent has two children in the first marriage, according to her first respondent is no more and thereafter petitioner married her. She alleged matrimonial cruelty and harassment at the hands of the petitioner and demanded maintenance from him. Petitioner denied that there was any valid marriage and claimed that former husband of the respondent is alive. He also claimed that by fraud and under coercion he happened to enter into a marriage agreement with the respondent. Further contention is that respondent is otherwise capable of maintaining herself. Petitioner also filed O.P. CRL. R.P. No.1702 of 2009 -: 12 :- No.31 of 2008 for dissolution of marriage. Both sides adduced evidence. Court below found in favour of marriage with the respondent and dismissed O.P. No.31 of 2008 and allowed maintenance directing the petitioner to pay maintenance at he rate of Rs.1,000/- per month. Learned counsel contends that marriage of the petitioner with respondent is not proved and at any rate respondent has sufficient means to maintain herself. It is disputed that there was a marriage between petitioner and respondent on 26.5.1996. Respondent has given evidence as P.W.1 about the marriage and produced Ext.A1, extract of the marriage register. It is admitted by petitioner also that from 26.5.1996 onwards he has been cohabiting with the respondent. On the basis of Ext.A1, evidence of P.W.1 and the fact that parties are living together as main and wife from 26.5.1996 there is no reason to believe the evidence of respondent as P.W.1 regarding the marriage. At any rate if petitioner is successful in getting the marriage dissolved as prayed in O.P. No.31 of 2008 it is open to the petitioner for alternation of the maintenance under Section 127 of the Code of Criminal Procedure. So far as the maintenance awarded to the respondent is concerned it is true that petitioner pleaded that respondent is working as a teacher in an Anganwadi but no evidence in that line was brought in this case. Learned counsel referred me to the deposition of the respondent in some other proceedings between the same parties where respondent is stated to have admitted that she is a Anganwadi teacher and that she is getting Rs.1,700/- per month. Learned counsel also submitted from the deposition that for the marriage of her daughter she had arranged about 22 sovereigns of gold ornaments. No evidence is brought out regarding the occupation or income of the respondent. Even assuming that she is earning Rs.1,700/- per month as an Anganwadi teacher what is awarded is only Rs.1,000/- per month. I am not inclined to think, even if it is admitted that she is getting Rs.1,700/- per month otherwise that the maintenance awarded is excessive so as to call for interference. I find that no grounds are made out to interfere with the order impugned. Revision fails. It is dismissed. UNNUMBERED RP This application is filed to condone the delay of days in filing the revision against dismissal of a private complaint for absence of petitioner. It is stated in the affidavit that petitioner was out of station and hence could not his counsel. Revision is against the dismissal of a private complaint for absence of petitioner and lack of representation by counsel. It is seen that private complaint was filed in the year 2007 and impugned order was passed o 2.2.2008. Complaint itself relates to the alleged violation of the terms of the agreement involving civil liability or alleged suppression of the execution of an earlier agreement between petitioner and respondent No.2. On the facts of the case I am not inclined to think that delay is properly explained. Hence the application to condone delay in filing the revision is dismissed. Consequently the unnumbered revision is dismissed as filed out of time. CRL. R.P. No.1702 of 2009 -: 13 :- Rp3287 This revision is in challenge of the CRL. R.P. No.1702 of 2009 -: 14 :-