Further, it is noticed that the accused was issued
with a statutory notice. If he had not actually issued the cheque,
he would have responded immediately. Instead, he kept silent.
It was the above facts, which persuaded the courts below to
come to the conclusion that the offence has been established.
The findings are based on evidence on record and no reasons are
made out to interfere with the findings.1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933
CRRP.No. 243 of 2012
------------------------------
M.P.PRAKASHAN,
v
1. M.SASI,
2. STATE OF KERALA,
P. BHAVADASAN, J.
---------------------------------------
Cr. R.P. NO : 243 of 2012
----------------------------------------
Dated this the 25th day of January, 2012
Citation; 2013 (4) Crimes 473 (kerala)
The accused was prosecuted for the offence
punishable under Section 138 of the Negotiable Instruments Act.
He was found guilty and was therefore, convicted and sentenced
to suffer simple imprisonment for six months. He was also
directed to pay a sum of Rs. 75,000/- as compensation, in
default of payment of which he had to suffer simple
imprisonment for three months. In appeal the sentence was
modified to one of simple imprisonment till the rising of the
court and to pay a compensation of Rs. 75,000/- in default of
payment of which, he has to suffer simple imprisonment for one
month.
2. According to the complainant, the accused was very
familiar to him. He had given a sum of Rs. 75,000/- on
24.05.2005 to the accused. In repayment of the said liability,
Exhibit P1 cheque was issued to him which, on presentation,
bounced for want of funds in the account of the accused. To the
statutory notice issued by the complainant, there was no
response and the amount was not paid. So complaint was laid.
3. Cognizance of the offence was taken by the trial
court and a summons was issued to the accused. On appearance
of the accused, the particulars of the offence were read out to
him to which he pleaded not guilty and claimed to be tried.
Complainant was examined as PW1 and Exhibits P1-P5 were
marked. After the close of the evidence of the complainant, the
accused was questioned under Section 313 of Cr.PC in which he
denied all the incriminating circumstances brought out in
evidence against him and maintained that he is innocent but
chose to adduce no evidence.
4. On an appreciation of the evidence, the trial court
came to a conclusion that the offfence has been made out and
convicted and sentenced the accused as already mentioned. In
appeal, sentence was modified.
5. The learned counsel appearing for the revision
petitioner pointed out that there is no evidence to prove as to
when the cheque has been executed by the accused and without
proof of the same the offence cannot be said to have been
proved.
6. The complainant has spoken to as PW1. He has
stated that an amount of Rs.75,000/- was borrowed by the
accused from him on 24.05.2005 and the accused on demand,
had issued Exhibit P1 cheque for repayment of the same. The
further case of the complaint is that the cheque on presentation
bounced. Infact, the accused has no definite stand regarding the
issuance of the cheque except for denying the circumstances put
to him. He did not set up any specific defence at all. The courts
below, therefore, accepted the evidence of PW1 to reach a
conclusion.
7. Further, it is noticed that the accused was issued
with a statutory notice. If he had not actually issued the cheque,
he would have responded immediately. Instead, he kept silent.
It was the above facts, which persuaded the courts below to
come to the conclusion that the offence has been established.
The findings are based on evidence on record and no reasons are
made out to interfere with the findings.
8. Faced with the above situation, the learned counsel
appearing for the revision petitioner prayed for some time to pay
the compensation amount as awarded by the lower appellate
court.
9. Considering the nature of the offence and also the
willingness expressed by the petitioner to pay the amount, it is
felt that some time can be granted to the complainant to pay for
the compensation amount as awarded by the lower appellate
court.
10. In the result, while confirming the conviction of the
evidence as awarded by the lower appellate court, the revision
petitioner is granted 3 months time to pay the compensation
amount as awarded by the lower appellate court failing which,
the default clause as ordered by the lower appellate court shall
take effect.
P. BHAVADASAN
JUDGE.
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