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2012 Supreme(Online)(KER) 8284
HIGH COURT OF KERALA
P.S.GOPINATHAN, J
P V BABY – Appellant
Versus
K V MANOHARAN ALIAS JAYAN – Respondent
CRIMINAL REVISION PETITION 331/2002
Lack of evidence to support claims of partial payment under Section 138 of the Negotiable Instruments Act does not negate liability for dishonored cheques.
Headnote:
Negotiable Instruments - Section 138 - Legal Framework Summary
Fact of the Case:
The revision petitioner was found guilty under Section 138 of the Negotiable Instruments Act for issuing a dishonored cheque. He was initially sentenced to three months imprisonment and fined Rs.10,000, which was later modified on appeal to a fine of Rs.5,000.
Finding of the Court:
The court determined that the dishonoring of the cheque and failure to pay despite notice were undisputed. The plea of partial payment was not supported by evidence, warranting confirmation of the conviction.
Issues: Whether the conviction under Section 138 was justified despite the claim of partial payment and no evidence being presented to support it.
Ratio Decidendi: The conviction was upheld as the evidence showed clear liability under Section 138, negating the appealer's claim of partial payment due to lack of evidence.
Final Decision: The revision petition was partially allowed, reducing the sentence to imprisonment till the rising of the court and a fine of Rs.3,000, with compensation awarded.
O R D E R
On a prosecution under Section 138 of the Negotiable Instruments Act (N.I.Act) launched by the 1st respondent before the Judicial Magistrate of First Class, Thaliparamba, the revision petitioner was found guilty. Consequently, he was convicted and sentenced to simple imprisonment for three months and a fine of Rs.10,000/- with a default sentence of simple imprisonment for two weeks. The prosecution was basing upon a cheque for Rs.32,000/-.
2. In criminal appeal, the Additional Sessions Judge, Thalassery by the impugned judgment dated 9.1.2002, while confirming the conviction and the substantive sentence, reduced the fine to Rs.5,000/-. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, the revision petition is preferred.
3. It is reported that Adv. Sri. V. Rajagopal has stopped the practice and Adv. Sri. P.T. Antony, who represented the : 2:
revision petitioner, had filed a fresh vakalath today.
4. I have heard Adv.Sri. P.T. Antony and perused the judgments of the courts below.
5. Borrowal and issuance of the cheque is not disputed. Dishonouring of the cheque and failure to discharge the liability despite the notice are also not disputed. The only plea that was raised is that Rs.22,000/- was paid in cash for which the 1st respondent promised to issue receipt. But, admittedly no receipt was issued. No evidence was let in by the revision petitioner in support of the plea of discharge. Nature of the dispute being of the above nature, I find that the conviction under challenge is based upon cogent evidence and requires no interference. It is not vitiated by any error, illegality or impropriety.
6. Adv. Sri. P.T. Antony persuasively argued for a lenient sentence reiterating the plea of partial discharge. In the absence of any evidence, I am not inclined to accept the plea of discharge. But having taken into account that the revision petitioner was an advocate clerk and that compensation awarded by the 1st respondent is only a pittance, I find that the : 3:
sentence requires modification and that a sentence of imprisonment till the rising of the court with a fine of Rs.3,000/- with direction to pay Rs.32,000/- as compensation to the 1st respondent would meet the ends of justice. In the result, the revision petition is allowed in part.
While confirming the conviction, the substantive sentence is reduced to imprisonment till the rising of the court and a fine of Rs.3,000/- with direction to pay Rs.32,000/- as compensation to the 1st respondent. In default of payment of fine and compensation, the revision petitioner shall undergo simple imprisonment for one month and five months respectively. The revision petitioner is directed to surrender before the trial court which shall see the execution of sentence and report compliance.
P.S. GOPINATHAN, JUDGE.
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P.S. GOPINATHAN, J.
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Crl.R.P.No.331 OF 2002 ............................................
5th day of November, 2012
O R D E R
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