Kerala High Court
Philip Davis vs Thomas on 6 August, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2517 of 2009()
1. PHILIP DAVIS, S/O.BABY DAVIS,
... Petitioner
Vs
1. THOMAS, S/O.OUSPEH,MAYILKUNNEL,
... Respondent
2. THE STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2517 of 2009
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Dated this the 6th day of August, 2009.
ORDER
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. Public Prosecutor takes notice for respondent No.2.
2. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in Crl.Appeal No.492 of 2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act"). According to respondent No.1, petitioner owed Rupees three lakhs to him and for payment of that amount petitioner issued Exts.P2 and P3, cheques dated 31.8.2004 for Rupees two lakhs and dated 15.9.2004 for Rupees one lakh. Dishonour of those cheques as account was closed and funds were insufficient is proved by Exts.P4 to P7 and P11. Service of statutory notice on petitioner is proved by Exts.P8 to P10. Son and power of attorney holder of respondent No.1 gave evidence as PW1. He referred to the transaction leading to the execution of cheque. According to the petitioner, no amount is due to respondent No.1 and at the time respondent No.1 joined the kuri run by him, signed blank cheques were given as security which have been misused. It is contended that due execution of the cheques is not proved and that at any rate there is no consideration for the Crl.R.P.No.2517/2009 2 cheques.
3. In evidence PW1 stated that his father, respondent No.1 had joined in three kuries run by the petitioner in his name and on termination of those kuries petitioner owed Rupees three lakhs to respondent No.1. Petitioner then gave Ext.P17, demand promissory note in his own handwriting undertaking to pay the said amount on demand with interest. Accordingly respondent No.1 made a demand for the amount as per Ext.P18, notice. Petitioner gave evidence as DW1. He had no definite case as to the circumstances leading to the execution of the cheque. DW2 is an employee of petitioner. He admitted execution of the cheque. Contention advanced by the learned counsel is that going by the evidence of PW1 no amount was due to respondent No.1 and hence the cheques are not supported by consideration. Learned counsel has taken me through the deposition of PW1. What PW1 stated is that his father, respondent No.1 had joined three kuries run by the petitioner in his name. That does not mean that the amount was due to PW1. Going by his evidence it is seen that he was only a name lender for respondent No.1. At any rate it is not disputed that PW1 is the son of respondent No.1 and, it is also not disputed that Exts.P2 and P3 are issued in favour of respondent No.1. So far as respondent No.1 is the payee under those cheques only he could initiate action based on those cheques whether it is under Section 138 of the Act or for enforcement of the cheques under the civil law. Therefore, it is idle to contend that no amount was due and respondent No.1 could not initiate prosecution. Yet another Crl.R.P.No.2517/2009 3 contention is that going by Ext.P16 series no amount was due to respondent No.1. Ext.P16 series, chitty pass books are proved to be issued by the petitioner to respondent No.1. Ext.P16 series only evidenced payment of the instalments payable by respondent No.1 in the kuri transaction and has nothing to do with the repayment of the sum of Rupees three lakhs on the chitty terminating. Evidence of PW1 is that on termination of the kuries Rupees three lakhs was due for which Ext.P17, demand promissory note was executed. Execution of demand promissory note is not disputed. It is on demand for payment of the amount covered by Ext.P17 that petitioner issued Exts.P2 and P3. Therefore, the contention that no amount was due to respondent No.1 is not sustainable. Courts below have considered the evidence and come to the conclusion that petitioner issued the cheques in favour of respondent No.1 and that it was for the discharge of a legally enforceable debt/liability. I find no reason to interfere with that finding.
4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. There was a direction for payment of Rupees three lakhs by way of compensation to respondent No.1 and in default of payment to undergo simple imprisonment for three months. Appellate court did not interfere with the sentence. According to the petitioner sentence awarded is excessive. Considering the nature of offence I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for deposit of Crl.R.P.No.2517/2009 4 compensation. Since substantive sentence has been modified as simple imprisonment till rising of the court and default sentence for non-payment of compensation is not a part of the sentence but only a mode of enforcement of direction for payment of compensation and considering the amount involved I direct that petitioner has to undergo simple imprisonment for six months in case of non-payment of compensation.
5. Learned counsel requested that petitioner may be granted six months' time to deposit compensation. According to learned counsel petitioner is unable to raise the amount immediately. Considering the circumstances stated by learned counsel and the amount I am inclined to grant time to the petitioner till 5.12.2009 to deposit compensation.
Resultantly, this revision petition is allowed in part to the following extent:
i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court.
ii. Petitioner is granted time till 5.12.2009 to deposit compensation in the trial court as ordered by that court. In case of failure petitioner has to undergo simple imprisonment for six months.
iii. The amount if any deposited by the petitioner in any of the courts below shall be adjusted in the compensation payable by the petitioner. Such amount if any can be withdrawn by respondent No.1.
iv. It is made clear that it will be sufficient compliance of the direction for deposit of compensation or the balance which the petitioner Crl.R.P.No.2517/2009 5 is liable to deposit on such adjustment as above stated 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 compensation within the above said period.
Petitioner shall appear in the trial court on 7.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance.
THOMAS P.JOSEPH, Judge.
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