IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.REV.PET.NO. 1940 OF 2009() ------------------------------ CRA.169/2007 OF ADDL.SESSIONS COURT-II, KOZHIKODE ST.270/2005 OF JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- HARIKUMAR,S/O.SUCHEENDRAN, 33/4107,KODAKKALAPARAMBIL, MALAPARAMBA P.O.,KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.T.R.RAVI RESPONDENT(S): RESPONDENTS/ACCUSED & STATE -------------------------------------------------------------------------- 1. M/S.INTEGRATED FINANCE COMPANY LTD., 4/254,A.G.ROAD,KOZHIKODE,REP.BY ITS RECOVERY EXECUTIVE SRI.GOPALAKRISHNAN NAIR. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FORMER ADMISSION ALONG WITH CRL.R.P. NO.1941 AND 1942 OF 2009 ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1940 of 2009, CRL.R.P. NO.1941 of 2009 AND CRL. R.P. NO.1942 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2009 O R D E R -------------- Heard learned counsel for petitioner and Public Prosecutor who took notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass and which is not prejudicial to it. 2. These revisions arise from conviction and sentence imposed on the petitioner, common in all cases for offence punishable under Section 138 of the Negotiable Instruments Act. Respondent No.1 in these cases is a Public Limited Company engaged in hire purchase business. According to it, petitioner entered into a hire purchase agreement with it and availed a loan of Rs.3,30,400/- for purchasing an Ambassador Car. As per the agreement between petitioner and respondent No.1, the former was to repay the amount in 36 installments of Rs.12,018/- per month each. For repayment of the said amount petitioner gave 36 cheques to respondent No.1. Payments were defaulted by petitioner. Thereon respondent No.1 presented the cheques for the respective months which were CRL.R.P.Nos.1940, 1941 and 1942 of 2009 -: 2 :- dishonoured for insufficiency of funds. Respondent No.1 issued statutory notices to the petitioner intimating dishonour and demanding payment of the amount. Notices were served on the petitioner but he did not pay the amount. Instead he sent reply according to respondent No.1, taking up false contentions. Respondent No.1 filed three complaints which were taken on file by the court of learned Judicial First Class Magistrate-IV, Kozhikode as S.T. Nos.962 of 2003, 327 of 2004 and 270 of 2005. Officer of respondent No.1 gave evidence as P.W1. Exhibits P1 and P5 are copy of resolutions produced by respondent No.1 to show that P.W1 was authorised to give evidence on its behalf. Exhibits P2, P6 to P8 and P15 are the cheques which were dishonoured for insufficiency of funds. Dishonour of those cheques for insufficiency of funds is proved by the evidence of P.W1 and Exts.P3, P9 to P11 and P16 and issue and service of notices on the petitioner are proved by Exts.P4, 12 and P17. Exhibits D1, D3 and D4 are copies of reply notices sent by the petitioner. According to the petitioner as per the terms and conditions of the hire purchase agreement respondent No.1 was to give registration certificate to the petitioner which respondent No.1 did not perform and consequently petitioner could not ply the vehicle. He suffered loss. He therefore contended that he is not liable to make payment of defaulted CRL.R.P.Nos.1940, 1941 and 1942 of 2009 -: 3 :- installments to respondent No1. Petitioner gave evidence as D.W.1. D.W.2 is the Area Manager of respondent No.1. 3. There is no dispute that the cheques in question were drawn on the account maintained by petitioner and given to respondent No.1 for payment of installments. There is also no dispute that those cheques were dishonoured for insufficiency of funds. Contention raised in these revisions is that due execution of the cheques is not proved. Courts below observed with reference to the Motor Vehicles Act that it was not the responsibility of respondent No.1 to ensure that Registration Certificate is provided for the petitioner and hence contention of the petitioner cannot be sustained. 4. Relevant agreement is not summoned by the petitioner. There is no evidence before the court to show that under terms of the agreement, respondent No.1 was obliged to ensure that petitioner got Registration Certificate of the vehicle in question. It has come in evidence that petitioner preferred a complaint to the Consumer Redressal Forum (O.P. No.375 of 2003) complaining that respondent No.1 failed to comply with the terms and conditions of the agreement and thereby caused loss to him. It has also come in evidence that the petition was dismissed against the petitioner. If at all petitioner is aggrieved by the alleged non-compliance of the terms and conditions CRL.R.P.Nos.1940, 1941 and 1942 of 2009 -: 4 :- of the agreement by respondent No.1 he has to seek compensation which he had already tried and failed. Petitioner has no case that he has paid the amount covered by the cheques. Respondent No.1 was entitled to get the amount covered by the cheques. Due execution of the cheques for discharge of legally enforceable debt/liability is proved. Petitioner could not rebut the presumption under Sec.139 of the Act. Hence there is no reason to interfere with conviction of the petitioner as concurrently found by the courts below. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month in each case and directed petitioner to pay compensation as well. In S.T. No.962 of 2003 petitioner was directed to pay compensation of Rs.13,000/- with default sentence of simple imprisonment for one month. In S.T. No.327 of 2004 petitioner was directed to pay compensation of Rs.39,000/- with default sentence of simple imprisonment for one month. In S.T. No.270 of 2005 petitioner was directed to pay compensation of Rs.13,000/- with default sentence of simple imprisonment for one month. Appellate Court modified the substantive sentence as simple imprisonment till rising of the court in all the cases but confirmed the direction regarding deposit of compensation and default sentence. The substantive sentence shall run concurrently. CRL.R.P.Nos.1940, 1941 and 1942 of 2009 -: 5 :- But in case of non-payment of compensation, the default sentence shall run consecutively. 6. Learned counsel for petitioner submitted that the sentence imposed in each case is excessive. He also submitted that petitioner is unable to raise the entire amount in lump immediately. He submitted that petitioner is prepared to deposit the amount within two months in S.T. No.962 of 2003, within three months in S.T. No.327 of 2004 and within five months in S.T. No.270 of 2005 from this day. Having regard to the amount involved I am inclined to grant time to the petitioner to deposit the amount in the court below as stated below. Resultantly these revisions are dismissed. Petitioner is granted time for payment of compensation in the following lines: (i) In Crl. R.P. No.1942 of 2009 arising out of S.T. No.962 of 2003 petitioner is granted two months’ time from this day to deposit the compensation in the trial court for payment to respondent No.1. In case of non-payment he shall undergo simple imprisonment for one month. (ii) In Crl. R.P. No.1941 of 2009 arising out of S.T. No.327 of 2004 petitioner is granted three months’ time from this day to deposit the compensation in the trial court for payment to respondent No.1. In case of non- CRL.R.P.Nos.1940, 1941 and 1942 of 2009 -: 6 :- payment he shall undergo simple imprisonment for one month. (iii) In Crl. R.P. No.1940 of 2009 arising out of S.T. No.270 of 2005 petitioner is granted four months’ time from this day to deposit the compensation in the trial court for payment to respondent No.1. In case of non- payment he shall undergo simple imprisonment for one month. (iv) It is made clear that it shall be sufficient compliance of the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of the compensation within the aforesaid period. Petitioner shall appear in the trial court on 26.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv