A.R. Mohan vs State of Kerala and Velukutty

Thomas P. Joseph, J.—Public Prosecutor takes notice for respondent No. 1. Notice to Respondent No. 2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to respondent No. 2.

petitioner challenges the concurrent findings entered against him as to the due execution of the cheque for the legally enforceable debt/liability and his failure to rebut the presumption u/s 138 of the Negotiable Instruments Act (for short, "the Act")

According to respondent No. 2 petitioner owed Rs. 2,00,000/- and for the discharge of that liability issued Ext.P1, cheque on 10.1.2006. On presentation the cheque was returned as payment was stopped. That, the cheque was returned as payment was stopped and there was no sufficient amount in the account of the petitioner are proved by Exts.P2, P3 and P7. Issue and service of notice are proved by Exts.P4 to P6. Respondent No. 2 gave evidence as P.W.1 and testified to his case. According to the petitioner there was no transaction between him and respondent No. 2 He does not also know respondent No. 2. He denied that he issued cheque in favour of respondent No. 2. Courts below were not inclined to accept that contention of the petitioner. So far as due execution the cheque is concerned though petitioner denied that he wrote or signed the cheque it is pertinent to note that dishonour of the cheque was not for the reason of any dissimilarity in the signature of the petitioner with the signature of the holder of the account. There is no serious challenge to the evidence of respondent No. 2 as to the fact that Ext.P1 contained signature of the petitioner. Petitioner did not explain how else cheque drawn on his account came in the custody of respondent No. 2. Courts below observed that there is no reason to disbelieve the evidence of respondent No. 2. It is also to be noted that in spite of getting statutory notice, petitioner did not reply to it. Petitioner has failed to rebut the presumption u/s 139 of the Act as well. In the circumstance there is no reason to interfere with the conviction of the petitioner u/s 138 of the Act.

Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months while directing payment of Rs. 2,00,000/- as compensation. Default sentence was also provided. Appellate court confirmed the conviction but modified the default sentence. Learned Counsel for petitioner at this stage submitted that the substantive sentence awarded may be modified and petitioner may be granted three months'' time to deposit the compensation.

Having regard to the nature of the offence and amount involved, I do not find reason to interfere with the direction for payment of compensation. However, I am inclined to modify the substantive sentence as simple imprisonment till rising of the court. As requested by learned Counsel for petitioner three months'' time is granted to the petitioner to deposit the compensation.

Resultantly, this revision is allowed in part in the following lines:

(i) Substantive sentence awarded by the court below is modified as simple imprisonment till rising of the court.

(ii) Petitioner is granted three months'' time from this day to deposit the compensation in the trial court. In casse of default to pay compensation petitioner shall undergo simple imprisonment for three months.

(iii) It is made clear that it shall be sufficient compliance of condition (ii) if petitioner paid the compensation to respondent No. 2 through his counsel in the trial court and respondent No. 2 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period three months.

Petitioner shall appear on 8.9.2009 in the trial court to receive the sentence.