IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 1615 of 2009() ------------------------------ CRA.69/2008 of SESSIONS COURT, KASARAGOD CC.906/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ SUDEER M.D. AGED 36 YEARS, S/O.C.V.DAMODARAN NEO DIGITAL STUDIO AND COLOUR, BALAJI TOWER, KOTTACHERY, P.O.KANHANGAD, BALLA VILLAGE, HOSDRUG TALUK. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. SREE GOKULAM CHITS AND FINANCE COMPANY PRIVATE LTD.REPRESENTED BY ITS MANAGING DIRECTOR A.M.GOPALAN REPRESENTED BY HIS POWER OF ATTORNEY HOLDER RAJESH P.V., AGED 25 YEARS, S/O.K.POKKAN LEGAL CLERK, SREE GOKULAM CHITS AND FINANCE COMPANY PRIVATE LTD,KANHANGAD BRANCH,HOSDRUG TALUK 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT, ERNAKULAM. PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1615 of 2009 -------------------------------------- Dated this the 25th day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to it. 2. Respondent No.1, claimed to be a private limited company is engaged in conducting chitty. Petitioner subscribed to a kuri, bid the same, received the amount and as per Ext.D4, agreed to pay the future instalments without fail. Respondent No.1 alleged that petitioner defaulted payment of the future instalments and that for the sum of Rs.67650/- due, issued Ext.P2, cheque dated 17.5.2006 which was dishonoured for insufficiency of funds as proved by Ext.P3, memo dated 18.5.2006. Notice was issued to the petitioner on 6.6.2006 to which petitioner sent reply contending that no such amount is due and that he had not issued cheque for such amount. Respondent No.1 filed complaint against the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P5. Petitioner contended that a signed blank cheque was given as security at the time of subscribing in the chitty. He proved Exts.D1 to D4. Ext.D1 is the notice sent by respondent No.1 to the petitioner and others on 8.4.2006. Ext.D2 is the office copy of reply sent on Crl.R.P.No.1615/2009 2 behalf of the petitioner to that notice on 3.7.2006. Ext.D3 is the copy of variyola and Ext.D4 is the agreement executed by the petitioner in favour of respondent No.1. Courts below found that petitioner issued the cheque for the discharge of that liability, that cheque was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand petitioner did not pay the amount. That concurrent finding is under challenge. Learned counsel contend that in the light of Exts.D3 and D4 courts below were not justified in finding against the petitioner regarding execution of the cheque. It is contended that no such amount as stated in Ext.P1 was actually due. Further contention is that as power of attorney holder (PW1) of respondent No.1 is not competent to give evidence regarding alleged transaction. 3. No doubt, a power of attorney holder can give evidence only as to the matters within his knowledge. Therefore PW1 though otherwise could represent respondent No.1 could give evidence only as to matters within his knowledge. PW1 has given evidence regarding the liability of the petitioner and his issuing the cheque. That evidence of PW1 is not challenged in that line. On the other hand, it is seen that the facts which according to petitioner would support his contention were attempted to be brought out through PW1 and Exts.D1 and D2 were put to him which he admitted also. Hence petitioner cannot now turn round and contend that PW1 is not competent to give evidence regarding the transaction. Crl.R.P.No.1615/2009 3 4. So far as execution of the cheque is concerned, PW1 has given evidence. Attempt of petitioner is to disprove the due execution of cheque relying on Ext.D1, notice dated 8.4.2006 where the amount due is stated to be Rs.54,570/- as against Rs.67,650/- stated in the cheque. PW1 has given evidence as that what is claimed in Ext.P2 (cheque) is the amount due as per the defaulted instalments with interest at the rate of 18% payable under clause 13 of Ext.D4. Learned counsel contends that clause 13 has no application to non-prized subscribers. I have gone through a copy of Ext.D4 provided by learned counsel. It contains provision for payment of interest higher than 18% for defaulted instalments. Therefore that contention cannot stand. 5. Though it is contended that petitioner had given a signed blank cheque at the time of subscribing to the kuri what is available is only the suggestion put to PW1 in that behalf. That, Ext.P2 contained the signature of the petitioner is admitted. Evidence of DW1, manager of respondent No.1 will not in any way advance the case of the petitioner. Courts below considered these aspects and concluded that petitioner issued the cheque for discharge of the liability. Apart from the presumption under Section 139 of the Act which the petitioner could not rebut, there is also evidence of PW1 as to the transaction which culminated in the issue of the cheque. There is little reason to interfere with that finding in exercise of the revisional power. 6. Learned magistrate sentenced the petitioner to undergo Crl.R.P.No.1615/2009 4 simple imprisonment for two months and to pay Rs.67,650/- as compensation. Appellate court modified the substantive sentence to imprisonment for a week while retaining the direction for payment of compensation. Appellate court has also provided default sentence for non-payment of compensation. I do not find reason to interfere with the direction for payment of compensation. But I am inclined to grant two months’ time to deposit the compensation as requested by learned counsel. So far as substantive sentence is concerned I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. In case of failure to deposit compensation, petitioner shall undergo imprisonment for two months. Resultantly, this revision is allowed in part in the following lines: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted two months’ time to deposit the compensation in the trial court for payment to respondent No.1. In case petitioner failed to deposit compensation within such time, he shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance with direction regarding deposit of compensation if the petitioner paid the compensation to respondent No.1 through its counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel Crl.R.P.No.1615/2009 5 acknowledging receipt of the compensation within the aforesaid time. iv. Petitioner shall appear in the trial court on 30.7.2009 to receive the sentence. Crl.M.A.No.4904 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks