Partly allowed

T.Abdu @ Abdutty v. C.Vijayarajan

Kerala HC13 Jul 2009Crl.Rev.Pet/604/2005

Case brief

AI extract

What is this about?

In a criminal revision, the High Court upheld the conviction for cheque bounce but modified the sentence to simple imprisonment until rising of the court and granted time for compensation deposit, finding no ground to interfere with factual findings as the presumption under Section 139 was not rebutted.

What did the court decide?

Substantive sentence modified to simple imprisonment till rising of the court; time granted till 30.12.2009 to deposit compensation.

T.Abdu @ Abdutty Vs C.Vijayarajan — 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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MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931

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Crl.Rev.Pet.No. 604 of 2005(A)

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CRA.284/2003 of ADDL.SESSIONS COURT (ADHOC FAST TRACK COURT-III), MANJERI CC.143/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA

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REVN. PETITIONER(S): APPELLANT/ACCUSED:

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T.ABDU @ ABDUTTY, S/O.MOOSA, THAYYIL HOUSE, PADUMUNDA, KARUVARAKUNDU, MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:

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C.VIJAYARAJAN, S/O.KANARAN, CHATHAMARTHODIKA HOUSE, ARIMANAL, KALIKAVU, MALAPPURAM DISTRICT.

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THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31.

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ADV. SRI.K.M.SATHYANATHA MENON FOR R1 PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/07/2009, 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.604 of 2005 -------------------------------------Dated this the 13^th day of July, 2009.

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ORDER

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This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc Fast Track Court-III), Manjeri in Crl.Appeal No.284 of 2003 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act).

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Petitioner faced trial in the court of learned Judicial Magistrate of First Class-II, Perinthalmanna in C.C.No.143 of 2002 for offence punishable under Section 138 of the Act on a private complaint preferred by respondent No.1. Case is that petitioner borrowed Rs.80,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 21.3.2002. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent No.1 served statutory notice on petitioner as proved by Exts.P3 and P4. Ext.P5 is the reply sent by petitioner. According to the petitioner, he had no transaction with respondent No.1, nor issued any cheque to him. At a time when he was in need of Rs.12,000/- he contacted respondent No.1. But respondent No.1 introduced him to one Moideen and in the mediation of respondent No.1, petitioner took a loan of Rs.12,000/- from the said Moideen. Two signed blank cheques were given to the said Moideen as security. Petitioner paid the entire amount due to Moideen. Respondent No.1 who was

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Crl.R.P.No.604/2005

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only a mediator demanded Rs.3,000/- for returning the cheques. As petitioner did not oblige, respondent No.1 has misused one of the cheques and preferred the complaint. Respondent No.1 gave evidence as PW1. Petitioner did not adduce any evidence on his side. Courts below considered the evidence and found in favour of due execution of the cheque. It is contended by learned counsel for petitioner that evidence of respondent No.1 would indicate that petitioner had given only a signed blank cheque. It is also the contention of learned counsel that there is no reference to the details of the alleged transaction in Ext.P3, copy of notice. Counsel for respondent No.1 supported the findings of the courts below.

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When examined as PW1, respondent No.1 stated that house of petitioner is about seven kilometres away from his tharawad house and he is acquainted to him. On 20.2.2002 petitioner requested him for a loan of Rs.80,000/-. He offered to give the amount the next day and accordingly amount was paid on the next day to the petitioner at Daya Medicals, Vaniyambalam which belonged to father of respondent No.1, with the understanding that petitioner would repay the amount within one month. After one month when respondent No.1 demanded repayment petitioner issued the cheque on 21.3.2002 . He denied the suggestion that transaction was between petitioner and Moideen and that he had only mediated that transaction. He

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Crl.R.P.No.604/2005

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denied that signed blank cheque leaf was misused. When questioned about execution of the cheque it is stated that petitioner only wrote his name and put his signature in the cheque in his presence. This statement according to the learned counsel for petitioner would fortify the contention of petitioner that signed blank cheque was misused.

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From the above said statement of respondent No.1 as PW1 I am unable to infer that according to respondent No.1 petitioner had given him a blank cheque with his signature and name. What can be understood from the evidence of PW1 is that the name was written and signature was subscribed by the petitioner in his presence. That means, according to PW1 the cheque was otherwise filled up and brought by petitioner. PW1 denied that the writings in Ext.P1 are different. I have gone through Ext.P1. I am unable to say that the writings in Ext.P1 are different.

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On the contention that Ext.P3, notice does not refer to the details of the transaction I am afraid, petitioner cannot succeed, for, statutory notice is required only to intimate the drawer about dishonour of the cheque for insufficiency of funds or such other reason as the case may be and there should be a demand for repayment of the amount. It is not the requirement of law that details of the transaction should be stated in the notice. In the complaint, respondent No.1 has stated that petitioner demanded a sum of Rs.80,000/- and

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Crl.R.P.No.604/2005

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the amount was paid at Daya Medicals, Vaniyambalam on 21.2.2002. Details regarding the execution of cheque are also given in the complaint. Hence notice is not invalid.

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It is true that petitioner has sent Ext.P5, reply to the statutory notice taking up the contention which the petitioner has urged before me. But that case of petitioner is not proved or probabilised. There is no contention that respondent No.1 was not capable of advancing Rs.80,000/- by way of loan. It has come in evidence that respondent No.1 had filed certain other cases (for offence punishable under Section 138 of the Act) against other persons. I have gone through the evidence of respondent No.1 and find no reason to disbelieve the same. Petitioner was not able to prove or probabilise the contention raised by him as to the circumstances in which the cheque happened to be in the custody of respondent No.1. On going through the evidence on record and considering the arguments advanced by counsel on both sides I find no reason to interfere with the finding of the courts below that petitioner issued the cheque for discharge of a legally enforceable debt/liability. Petitioner was not able to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner is legal and proper and required no interference.

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Learned magistrate sentenced petitioner to undergo simple imprisonment for four months and directed him to pay compensation of

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Crl.R.P.No.604/2005

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Rs.80,000/-. A default sentence of imprisonment for three months was provided. Appellate court did not interfere with the sentence. Having regard to the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation or default sentence.

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Learned counsel requested six months' time to deposit compensation. Counsel states that petitioner is not in a position to raise the amount immediately. Counsel for respondent No.1 opposed the request stating that the transaction is of the year 2002. Having regard to the amount involved and the circumstances stated by learned counsel, I am inclined to grant time till 30.12.2009 to pay compensation.

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Resultantly, this revision is allowed in part to the following extent:

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i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court.

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ii. Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court as ordered by that court. In case of failure, petitioner has to undergo the default sentence as ordered by the trial court. In case any amount is deposited by the petitioner in any of the courts below such deposit shall be adjusted towards the compensation awarded by the courts

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Crl.R.P.No.604/2005

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below.

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iii. It is made clear that it will be sufficient compliance with 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 compensation within the above said period.

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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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Crl.M.A.No.3141 of 2005 will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

T.Abdu @ Abdutty v. C.Vijayarajan

Case brief

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T.Abdu @ Abdutty v. C.Vijayarajan

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