Kerala High Court
Bincy Orathel vs Bijumon.P.C on 4 June, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1745 of 2009()
1. BINCY ORATHEL, AGED 37 YEARS,
... Petitioner
Vs
1. BIJUMON.P.C., AGED 26 YEARS,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.BEPIN VIJAYAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.NOs.1745 & 1746 OF 2009
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Dated this the 4th day of June, 2009
ORDER
These two revision petitions arise from the common judgment of learned Sessions Judge (Adhoc-III), Thalassery in Crl.Appeal Nos.249/06 and 247/06, respectively. Respondent No.1 filed two private complaints in respect of five cheques for the aggregate sum of Rs.2 lakhs alleging that petitioner committed offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act"). His case is that there was a suit pending before the Sub Court, Payannur as O.S.No.28 of 2001 between his father and one laizemma, wife of the petitioner in connection with a property transaction and while so, there was an out of court settlement of that case in mediation as per which petitioner executed an agreement in favour of respondent No.1. As part of that settlement and in consideration of the settlement of the civil suit, petitioner issued five cheques in favour of respondent No.1 for a total sum of Rs.2 lakhs. Those cheques were dishonoured for insufficiency of funds. In spite of Crl.R.P.No.1745/09 & 1746/09 2 dishonour intimation and demand being made to the petitioner, he did not pay the amount and hence the complaints. ST.No.139/2004 which is concerned in Crl.R.P. No. 1745/2009 is in respect of four of the said five cheques marked in the trial court as Exts.P2, P5, P8 and P9. In respect of the 5th cheque for Rs.75,000/-, respondent No.1 filed S.T.No.150/2004 from which Crl.R.P.No.1746/2009 arises. In both the cases respondent No.1 gave evidence as PW1 and testified to his case. He produced documents to prove the dishonour of the cheques involved and to show that statutory notices were served on the petitioner. In S.T.No.139/2004 petitioner sent Ext.P15, reply denying the allegations in the complaint and contending that he had no transaction with respondent No.1. In connection with the property transaction, brother of respondent No.1 had obtained signed blank cheques and signed blank stamp paper from him. He also contended that the agreement as well as the cheques were obtained from him by fraud and coercion. In S.T.No.150/2004 it is seen from Ext.P6 that the registered notice issued to the petitioner in his proper address was returned `unclaimed' though, intimation was given to him. In Crl.R.P.No.1745/09 & 1746/09 3 support of the contention raised by the petitioner, he examined the managers of the Drawee/collecting banks as DWs 1and 2 and produced Exts.X1 and X2 to prove that there was no proper intimation of dishonour to respondent No.1. Courts below negatived the contentions raised by the petitioner, upheld the claim of respondent No.1 as to the transaction and execution of the agreement and cheques and found the petitioner guilty. He was sentenced to undergo imprisonment. There was also a direction for payment of the amount covered by the respective cheques as compensation.
2. In these revisions, there is no challenge to the finding of the courts below as to the dishonour of the cheques and the service of statutory notices on the petitioner. It is brought out from the evidence of DW2, the manager of the collecting bank that on getting dishonour intimation from the drawee bank, information was given to respondent No.1 over telephone. On the crucial question whether the cheques in question are executed by the petitioner as contended by respondent No.1 and whether the cheques are supported by consideration, learned counsel contends that findings entered by the courts below are not correct.
Crl.R.P.No.1745/09 & 1746/09 4
3. I stated that respondent No.1 has given evidence as PW1 in both the cases as to the transaction and execution of the cheque. According to him, it was in settlement of the dispute in O.S.No.28/2001 that the agreement and the cheques in question were executed. Ext.P1 is the agreement. That agreement refers to the out of court settlement of the dispute involved in O.S.No.28/2001 and the issue of the cheques in question to respondent No.1. According to the petitioner, that agreement was fraudulently created on signed blank paper. He has also a case of coercion in the execution of the agreement. Courts below observed that if fraud and coercion are alleged by the petitioner, it is for him to establish that which, he has not done. That O.S.No.28/2001 was settled and accordingly disposed is admitted by respondent No.1 as PW1. Courts below observed that there is no reason to disbelieve that settlement. The said suit has been disposed of as per the settlement. If that be so, it is clear that it is pursuant to the agreement (Ext.P1) that said case was settled. For that reason also, I do not find any reason to disbelieve the evidence of respondent No.1 as to the transaction and execution of the agreement and the cheques in question. It is Crl.R.P.No.1745/09 & 1746/09 5 settled that issuance of the cheque can be for discharge of the liability of a third person as well. In this case consideration for the cheques is the settlement of the dispute in O.S.No.28/2001 and withdrawal of that case which has already taken place. Hence the contention that cheques are not supported by consideration cannot stand.
4. In S.T.No.150/04 it is seen that in spite of intimation given to petitioner, he did not claim the notice and hence it was returned. Courts below have considered the evidence and found in favour of due execution of the cheques in question. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Hence conviction of the petitioner does not require interference.
5. So far as sentence is concerned in S.T.No.139/2004, petitioner has been sentenced to undergo Simple Imprisonment for three months each in respect of four cheques involved in that case. There is also a direction for payment of Rs.1,25,000/- as compensation and in default of payment to undergo Simple Imprisonment for six months. In S.T.No.150/2004 substantive sentence is Simple Imprisonment for three months. There is a direction for payment of Crl.R.P.No.1745/09 & 1746/09 6 compensation of Rs.75,000/- and in default of payment to undergo Simple Imprisonment for three months. Appellate court did not interfere with the sentence or the direction for payment of compensation. Learned counsel requested for modification of the substantive sentence awarded to the petitioner. He also requested that substantive sentence, if awarded, may be directed to run concurrently.
6. On the facts of the case and considering the nature of the offence, I am satisfied that Simple Imprisonment till rising of the court will be sufficient. At the same time, there is no reason to interfere with direction for payment of compensation or the default sentence provided. Learned counsel requested six months' time to deposit compensation. He states that petitioner is in poor financial condition and is unable to raise the amount unless, he gets at least six months' time. Considering the amount involved in both the cases and the circumstances stated by learned counsel, I am inclined to grant four months' time to deposit the compensation covered by both the cases.
Resultantly, these revision petitions are allowed in part in following lines.
Crl.R.P.No.1745/09 & 1746/09 7
i) Substantive sentence awarded to the petitioner in both the cases is modified as Simple Imprisonment till rising of the Court (to run concurrently).
ii) Petitioner is granted four months' time from today to deposit compensation as ordered by the trial court. In case of default, he has to undergo imprisonment as ordered by the court below which shall run consecutively.
iii) It is made clear that it will be sufficient compliance with the direction as to the deposit of compensation that petitioner paid the amount of compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed statement in the trial court through his counsel within the said period of four months acknowledging receipt of the amount.
iv) Petitioner shall appear in the trial court on 6.10.2009 to receive the sentence.
THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1745/09 & 1746/09 8