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M.T. SUKUMARAN, S/O.KUNHATHAN VAIDYAR versus K. MOHANDAS, S/O. SANKARAN

High Court of Kerala

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M.T. SUKUMARAN, S/O.KUNHATHAN VAIDYAR v. K. MOHANDAS, S/O. SANKARAN - Crl Rev Pet No. 4352 of 2006 [2006] RD-KL 2802 (7 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 4352 of 2006()

1. M.T. SUKUMARAN, S/O.KUNHATHAN VAIDYAR,
... Petitioner

Vs

1. K. MOHANDAS, S/O. SANKARAN,
... Respondent

2. THE STATE OF KERALA,

For Petitioner :SRI.BABU S. NAIR

For Respondent : No Appearance

The Hon'ble MR. Justice K.T.SANKARAN

Dated :07/12/2006

O R D E R

K.T. SANKARAN, J.

CRL.R.P.NO. 4352 OF 2006

Dated this the 7th day of December,2006

O R D E R

The petitioner is the accused in S.T.No.3608 of 2003, on the file of the Court of the Judicial Magistrate of the First Class, Nilambur. The complaint was filed by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. The trial court found the petitioner guilty for the offence and he was sentenced to undergo simple imprisonment for one month and to pay Rs.35,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for one month. On appeal, the Appellate Court confirmed the conviction. However, the sentence was modified and reduced as imprisonment till the rising of the Court. The direction to pay compensation of Rs.35,000/- and the default CRL.R.P. NO.4352 OF 2006 sentence thereof was confirmed.

2. The case of the complainant is that the accused borrowed a sum of Rs.35,000/- and in discharge of that liability Ext.P1 cheque was issued. On presentation of the cheque, it was dishonoured on the ground of insufficiency of funds in the account of the accused. Ext.P4 notice was issued to the accused. The accused received notice, but he did not send any reply, nor did he repay the amount. Hence the complaint was filed.

3. The complainant was examined as PW1 before the trial court and Exts.P1 to P6 were marked. There was no defence evidence on the side of the accused. The suggestion made in the cross examination of PW1 is that the accused had given a blank cheque to one Kunhappa when he had occasion to borrow Rs.7,000/- from him and that the cheque was misused by the complainant for filing the CRL.R.P. NO.4352 OF 2006 present complaint. This contention of the accused is not substantiated by any acceptable evidence. The trial court has rightly drawn the presumption under Section 139 of the Negotiable Instruments Act. The accused failed to rebut the presumption under Section 139 of the Act. The conviction of the petitioner is, therefore, justified. The Appellate Court also considered the facts and evidence in detail and concurred with the view taken by the trial court. The sentence was reduced by the Appellate Court. No grounds are made out for interference under Section 397 of the Code of Criminal Procedure.

4. Learned counsel for the petitioner submitted that the petitioner is aged more than 62 years and that he finds it difficult to raise funds to pay the compensation amount. A reasonable time is prayed for by the petitioner to deposit the compensation amount. In the facts and CRL.R.P. NO.4352 OF 2006 circumstances of the case, I am inclined to grant three months' time to the petitioner to deposit the compensation amount. In the result, the Criminal Revision Petition is dismissed and the conviction and sentence are confirmed. However, three months' time is granted to the petitioner to pay the compensation amount. The default sentence shall be kept in abeyance for a period of three months. (K.T.SANKARAN) Judge ahz/

K.T.SANKARAN, J.

CRL.M.C.NO. OF

O R D E R

September, 2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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