Dismissed

Mathewkunju Mathew v. Binoy Thomas and Sate of Kerala

Kerala HC14 Jul 2009Crl.Rev.Pet/2257/2009

Case brief

AI extract

What is this about?

This revision petition challenged the appellate court's judgment confirming conviction under Section 138 of the Negotiable Instruments Act and modifying the sentence. The High Court dismissed the revision, upheld the modified sentence by the appellate court, and granted the appellant six months' time to deposit the fine.

What did the court decide?

Appellant granted time till 30.12.2009 to deposit fine; execution of warrant stayed till 31.12.2009.

Mathewkunju Mathew Vs Binoy Thomas and Sate of Kerala — 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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TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931

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Crl.Rev.Pet.No. 2257 of 2009()

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CRA.674/2007 of ADDL.SESSIONS COURT (SPECIAL), KOTTAYAM ST.73/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY

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REVN. PETITIONER(S): APPELLANT/ACCUSED

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MATHEW KUNJUMATHEW, PADIMJAREPARAMBIL, THOTTAKKADU VILLAGE, CHANGANACHERRY.

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BY ADV. SRI.SURIN GEORGE IPE

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RESPONDENT(S): COMPLAINANT AND STATE

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BINOY THOMAS, S/O.THOMAS PETER, MUTTATHUKARA VEEDU, VAKATHANAM VILLAGE, CHANGANACHERRY.

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

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BY PUBLIC PROSECUTOR SHRI C.S.HRITHWIK

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/07/2009, 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.2257 of 2009 -------------------------------------Dated this the 14^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 make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2.

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This revision is in challenge of judgment of learned Additional Sessions Judge (Special), Kottayam in Crl.Appeal No.674 of 2007 confirming conviction of petitioner but modifying sentence for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1 on whose complaint the proceeding was initiated, petitioner borrowed Rupees one lakh from him and for repayment of that amount issued Ext.P1, cheque dated 31.12.2003. That cheque was dishonourd for insufficiency of funds as proved by Exts.P2 and P3. Statutory notice was served on petitioner as proved by Exts.P4 to P6 intimating dishonour and demanding payment of the amount. Respondent No.1 gave evidence as PW1 and testified to his case. According to the petitioner he had no transaction with respondent No.1 and instead he had borrowed Rupees one lakh from the father of respondent No.1 and given a signed blank cheque as security. That cheque has been misused by respondent No.1. Learned counsel contended that due execution of the cheque is not proved . But petitioner did not adduce any evidence or bring out

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Crl.R.P.No.2257/2009

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circumstances to prove or probabilise his contention. It is not disputed that Ext.P1 is signed by petitioner and it is drawn on the account maintained by him. Petitioner did not reply to the notice served on him. Nothing is brought out to disbelieve the evidence of respondent No.1. Courts below therefore rightly found that petitioner issued the cheque for discharge of a legally enforceable debt/liability.

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Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. He was directed to pay compensation of Rupees one lakh to respondent No.1 under Section 357(3) of the Code of Criminal Procedure. Default sentence of imprisonment for one month was also provided. Appellate court while modifying the substantive sentence as simple imprisonment till rising of the court directed payment of fine of Rupees one lakh and provided default sentence of imprisonment for two months. Having regard to the nature of offence and the object of legislation there is little reason to interfere with the sentence as modified by the appellate court.

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Learned counsel submitted that petitioner is otherwise indebted and requested six months' time to deposit fine in the trial court. According to the learned counsel, petitioner is in financial difficulties and is unable to raise the amount immediately. Considering the circumstances stated by learned counsel, I am inclined to grant time till 30.12.2009 to the petitioner to deposit fine as ordered by the appellate court.

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Resultantly, this revision fails. It is dismissed. Petitioner is granted time

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Crl.R.P.No.2257/2009

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till 30.12.2009 to deposit fine in the trial court as ordered by the appellate court. 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.

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THOMAS P.JOSEPH, Judge.

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cks

Mathewkunju Mathew v. Binoy Thomas and Sate of Kerala

Case brief

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Mathewkunju Mathew v. Binoy Thomas and Sate of Kerala

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