IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 97 of 2000() ---------------------------- CRA.54/1998 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.900/1995 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- K.C.SHAJI, S/O.K.C.CHERUNNI VYDYAR, RESIDING AT KIZHAKKE VALLIYADIL HOUSE, PAINGOTTUPURAM, KUNNAMANGALAM, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT --------------- 1. T.K.SOMAN, S/O.CHATHUKUTTY, RESIDING AT THAVITTIRIKKUNNU HOUSE, KUTTIKKATTOOR AMSOM DESOM, P.O.KUTTIKKATTOR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA R1 BY ADV.SMT.T.RESMI DAMODARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.97 of 2000 -------------------------------------- Dated this the 1st day of December, 2008. ORDER Heard counsel for revision petitioner, first respondent and the Public Prosecutor. 2. Following points arise for consideration:- I. Whether revision petitioner issued the cheque in question for the discharge of any legally enforceable debt/liability? II. Whether sentence is excessive? 3. Point No.I. Case of the first respondent is that revision petitioner borrowed Rs.50,000/- from him in the presence of one Satheesan at his house and issued Ext.P1 cheque dated 24.6.1995 for the discharge of that debt/liability, cheque was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, revision petitioner did not pay the amount. Revision petitioner sent reply denying the transaction as pleaded by the first respondent. First respondent gave evidence as PW1 and proved Exts.P1 to P4. Revision petitioner examined DW1 and proved Exts.D1 and D1(a), office copy of the reply notice and postal receipt. Counsel for revision petitioner contended that the presumption under Section 139 of the Negotiable Instruments Act (for short, ‘the Act’) is rebutted by the revision petitioner through the evidence of Crl.R.P.No.97/2000 2 DW1 which was not properly appreciated by the courts below. Counsel for the first respondent supported the concurrent finding. 4. First respondent stated that the revision petitioner came to his house on 20.5.1995 and in the presence of Satheesan, borrowed Rs.50,000/- and issued Ext.P1, cheque. Per contra, revision petitioner contended that he had borrowed only Rs.5,000/- from the first respondent on 25.2.1995, gave signed blank cheque and signed blank stamp paper, there was some dispute regarding payment of interest and that resulted in first respondent filing the complaint misusing the signed blank cheque. DW1 is the witness examined by the revision petitioner and claimed that he saw revision petitioner borrowing Rs.5,000/- from the first respondent on 25.2.1995, giving signed blank cheque and stamp paper and later, revision petitioner discharging the liability on 30.5.1995. 5. That, Ext.P1 contained the signature of revision petitioner is admitted and proved. Then the question is whether the cheque was issued for the discharge of legally recoverable debt/liability as claimed by the first respondent. According to DW1, he was working in a shop at Kuttikattur during the time of transaction. He would say that revision petitioner and first respondent came to him with cheque leaf and stamp paper and in his presence, the transaction took place. It is also his version that though revision petitioner is residing near his house for the last six years, he has no much acquaintance with the revision petitioner. If that be so, it is difficult to believe that to create a witness for the transaction, revision petitioner and the first respondent would go Crl.R.P.No.97/2000 3 to him with signed blank cheque leaf and signed blank stamp paper. It is seen that DW1 has even spoken to the serial number of the cheque leaf and in re- examination he stated that he has noted down the serial number of the cheque. I have gone through the evidence of DW1 and I am not inclined to believe his version since it appears to be quite artificial. On the other hand, there is the evidence of first respondent supported by Ext.P1 itself. Courts below have accepted that evidence and found that revision petitioner executed the cheque in discharge of the debt/liability in favour of the first respondent. Section 139 of the Act does not extent to the legality of recoverability of the debt or other liability but there is evidence of first respondent that revision petitioner borrowed the amount from him on 20.5.1995. On going through the entire evidence, I find no illegality, irregularity or impropriety in the concurrent finding entered by the courts below. As such, conviction of the revision petitioner cannot be assailed. 6. Point No.II. So far as sentence is concerned, I am inclined to accept the request of the learned counsel for revision petitioner for leniency. Simple imprisonment till rising of the court and payment of compensation to the first respondent are sufficient in the ends of justice. Resultantly, this revision petition is allowed in part in the following lines:- i. Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. ii. Revision petitioner is directed to deposit in the trial court Rs.50,000/- (Rupees Fifty thousand only) for payment to the first respondent as Crl.R.P.No.97/2000 4 compensation within three months from this day failing which, he shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance of the direction in clause (ii) above if the revision petitioner paid the amount of compensation to the first respondent through his counsel in the trial court and the first respondent filed a statement through his counsel in the trial court acknowledging receipt of compensation within the said period of three months. Revision petitioner shall surrender in the trial court on 7.3.2009 to receive the sentence. iv. Bail bond is cancelled. Crl.M.P.No.453 of 2000 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.97/2000 5 Thomas P.Joseph, J. Crl.R.P.No.97 of 2000 ORDER 1st December, 2008