Dismissed

Babu v. K.P.Francis

Kerala HC24 Jul 2009Crl.Rev.Pet/2195/2009

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision petition challenging a conviction for cheque dishonour under Section 138 NI Act. The court held that the lower courts were justified in upholding the compensation direction and did not interfere with the substantive sentence, hence the revision failed.

What did the court decide?

Petitioner granted time till 30-12-2009 to deposit compensation via his counsel; execution of warrant in abeyance till 31-12-2009.

Babu Vs K.P.Francis — Cheque Dishonour | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931

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Crl.Rev.Pet.No. 2195 of 2009

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-----------------------------CRA.457/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ST.3691/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR

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REVN. PETITIONER/APPELLANT/ACCUSED:

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BABU, S/O. VISWAMBARAN, MADATHIPARAMBIL HOUSE, VELLIKKULANGARA, PADDY P.O., THRISSUR DIST.

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BY ADV. SRI.V.BINOY RAM

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RESPONDENT/RESPONDENTS/COMPLAINANT:

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E.P. FRANCIS, PROPRIETOR, FANCY TEXTILES NAYARANGADI, THRISSUR -1, (E.P. FRANCIS S/O. E.P. PAVOO, EDATHURUTHIKKARAN HOUSE, NELLIKKUNNU THRISSUR) REP. BY HIS POWER OF OF ATTORNEY HOLDER C.K. JOSHY, S/O. C.K.

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KUNJUVAREED, CHETHALAN HOUSE, MANNAMPEETTA,

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR: SRI C S HRITHWIK

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P JOSEPH, J

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---------------------------------------Crl.R.P.No.2195 of 2009

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Dated this 24^th day of July 2009

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ORDER

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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. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2.

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This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-2), Thrissur in criminal appeal No.457 of 2007 confirming conviction of petitioner but modifying the sentence for offence punishable under section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner purchased clothes from his textile shop on credit, Rs.90896/- was due from petitioner and for payment of that amount petitioner issued Ext.P1, cheque dated 27-12-03. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2 and P3. Service of statutory notice on petitioner is proved by Ext.P4 to P6. Ext.P7 is the reply. Power of attorney holder of respondent No.1 gave evidence as PW1. Ext.P8 is the power of attorney. Petitioner does not dispute that he had transaction with respondent No.1 on credit basis but claimed that there was a dispute regarding payment of Rs.2460/- and on account of that, singed blank cheque given at the time of business transaction was misused. Petitioner did not adduce any evidence in support of the

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Crl.R.P..No.2195 of 2009 2

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contention. PW1 asserted that Rs.90896/- is due from petitioner. It is not disputed that Ext.P1 contained signature of petitioner and that the cheque is drawn on the account maintained by petitioner. It is contended by learned counsel that actual amount payable to respondentNo.1 is not proved. Once execution of the cheque is admitted or proved, presumption under section 139 of the Act steps in. That presumption is related to consideration for execution of the cheque. PW1 has given evidence regarding the transaction and amount due. Petitioner does not dispute that he had credit transaction with respondent No.1. Nothing is brought out to disbelieve the evidence of PW1. In the circumstances courts below are justified in holding in favour of due execution of the cheque. Petitioner could not rebut the presumption under section 139 of the Act.

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Learned magistrate sentenced petitioner to undergo simple imprisonment for fifteen days. Petitioner was directed to pay compensation of Rs.90896/- to respondent No.1 with 8% interest and in default of payment to undergo simple imprisonment for six months. Appellate court while modifying substantive sentence to simple imprisonment till rising of the court did not interfere with direction for payment of compensation and the default sentence. Having regard to the nature of offence and object of legislation I do not find reason to interfere with the substantive sentence as modified and the direction

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Crl.R.P..No.2195 of 2009

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for payment of compensation and default sentence as confirmed by the appellate court.

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Learned counsel has requested six months' time for petitioner to deposit the compensation. It is submitted that petitioner is placed in difficult situation that he is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel and the amount involved, petitioner is granted time till 30-12-2009 to deposit compensation.

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Resultantly this revision fails. It is dismissed. Petitioner is granted time till 30-12-2009 to deposit compensation. 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 the amount within the period aforesaid.

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Petitioner shall appear in the trail court on 3-12-2009 to receive the sentence. Execution of warrant if any against petitioner will stand in abeyance till 31-12-2009.

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THOMAS P JOSEPH, JUDGE

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Sbna/

Babu v. K.P.Francis

Case brief

What is this about?

What did the court decide?

Babu v. K.P.Francis

Case brief

What is this about?

What did the court decide?

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