IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 Crl.Rev.Pet.No. 1865 of 2009() ------------------------------ CRA.245/2007 of SESSIONS COURT, THODUPUZHA ST.24/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- VENUGOPAL, S/O.KRISHNAN NAIR, KRISHNAVIHAR, KOLANI KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.J.JOSEMON SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. E.K.JOHN, S/O.KORA, ILLICKAL HOUSE, KOLANI KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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 Crl.R.P.No.1865/2009 2 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 4 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 5 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