IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.Rev.Pet.No. 1778 of 2009() -------------------------------------- AGAINST JUDGMENT DTD 26.11.2008 IN CRA.273/2005 of II ADDL. SESSIONS COURT, PALAKKAD CC.336/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- JEEVAN, S/O. RAMACHANDRAN, RAMACHANDRAN NILAYAM, MUDAPPALLUR, ALATHUR, PALAKKAD. BY ADV. MR.SAJAN VARGHEESE K. MR.LIJU. M.P RESPONDENT(S)/1ST RESPONDENT/COMPLAINANT/RESPONDENT/ 2ND RESPONDENT/NON-PARTY: -------------------------------------------------------------------------------- 1. SEBASTIAN, S/O. OUSEPH, PADIKKALATH HOUSE, PATTIKAD, THRISSUR,. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. RAVINDRA BABU. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1778 OF 2009 ---------------------------------------- Dated this the 8th day of June, 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not to the prejudice of respondent No.1. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of the judgment of learned Additional Sessions Judge, Palakkad in Crl.A.No.273/05 confirming conviction of the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the sentence. 3. Respondent No.1 would say that petitioner borrowed Rs.55,000/- from him and for the discharge of that liability, issued a cheque. On that cheque being dishonoured for insufficiency of funds and the petitioner failing to pay the amount in spite of dishonour intimation and demand, respondent No.1 preferred complaint against the petitioner as C.C.No.182/2000 for the offence punishable under Section 138 of the Act. During Crl.R.P.No.1778/09 2 the pendency of that case, there was an out of court settlement between petitioner and respondent No.1. As per that settlement petitioner paid Rs.20,000/- to respondent No.1. Petitioner’s mother paid on behalf of the petitioner, another sum of Rs.10,000/-. For the balance sum of Rs.25,000/- petitioner issued Ext.P1, cheque dated 31.3.2003. Pursuant to that settlement C.C.No.182/2000 was withdrawn. Ext.P7 is the agreement dated 11.12.2002 executed between the petitioner and respondent No.1 with the mother of petitioner as a witness. The cheque (Ext.P1) was presented for encashment but it was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was returned ‘refused’. Issue and return of notice as aforesaid are proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and testified to his case. What petitioner contended is that he had no transaction with respondent No.1 and instead, had borrowed some amount from the deceased brother of respondent No.1. He had given a cheque to the deceased brother of respondent No.1. Based on that cheque, respondent No.1 filed C.C.No.182/2000 but, Crl.R.P.No.1778/09 3 without his knowledge there was a settlement between his mother and respondent No.1 and accordingly the mother took up the entire liability. As insisted by the mother, he happened to handover Ext.P1 to respondent No.1. Courts below were not inclined to accept that contention of the petitioner and found him guilty under Section 138 of the Act. Learned counsel contends that conviction is not legal and proper. 4. Though contention raised is that petitioner had no transaction with respondent No.1, Ext.P7, agreement dated 11.12.2002 is not disputed by the petitioner. Concededly, that agreement is executed between petitioner and respondent No.1. The witness in that agreement is the mother of petitioner. Therefore his contention that he has no liability to respondent No.1 cannot be accepted. Moreover, it is admitted that though as allegedly insisted by his mother, petitioner had issued Ext.P1, cheque in favour of respondent No.1. Respondent No.1 is the payee under the cheque. Hence he alone could prefer a complaint based on that cheque. 5. Another contention advanced is that the mother of petitioner had taken up his entire liability. Learned magistrate observed that though there is such a statement in Ext.P7 that Crl.R.P.No.1778/09 4 did not absolve the liability of the petitioner. The mother handed over her title deed to respondent No.1 only as a collateral security. That Ext.P1 cheque was issued by the petitioner to respondent No.1 is admitted and proved. If that be so, its dishonour for insufficiency of funds gave respondent No.1 a cause of action to proceed against the petitioner. Conduct of the petitioner in refusing to receive notice of dishonour indicate that he was aware of the claim being made against him. On the evidence on record, courts below are justified in holding that petitioner issued the cheque in favour of respondent No.1 for the discharge of a legally enforceable debt/liability that cheque was dishonoured for insufficiency of funds and that petitioner did not pay the amount in spite of dishonour intimation and demand. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Conviction of the petitioner therefore does not require interference. 6. Learned counsel submitted that leniency may be shown in the matter of sentence. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for three months and directed him to deposit Rs.25,000/- as Crl.R.P.No.1778/09 5 compensation and in case of default of payment to undergo Simple Imprisonment for one month. Appellate court modified the substantive sentence to imprisonment for 15 days and converted compensation into fine and in case of default of payment to undergo Simple Imprisonment for 15 days. 7. Considering the nature of offence and the amount involved, I am satisfied that Simple Imprisonment till rising of the court is sufficient indulgence of justice instead of fine. Petitioner can be directed to pay compensation of Rs.25,000/- (Rupees twenty five thousand only) to respondent No.1, failing which petitioner shall undergo Simple Imprisonment for one month. 8. Learned counsel for petitioner requested three months time to deposit compensation in the trial court. Having regard to the nature of the offence and the amount involved, I am inclined to grant two months time from today to deposit compensation in the trial court. Resultantly, this revision petition 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. Crl.R.P.No.1778/09 6 ii) Sentence of fine is set aside. Petitioner is directed to deposit Rs.25,000/- (Rupees twenty five thousand only) as compensation in the trial court, for payment to respondent No.1 within two months from this day under Section 357(3) of the Code of Criminal Procedure and in case of default of payment, to undergo Simple Imprisonment for one month. iii) Petitioner shall appear in the trial court on 10.8.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1778/09 7