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T.T. MANOHARAN, MUKKOTTUMUGHAL HOUSE versus THE STATE OF KERALA

High Court of Kerala

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T.T. MANOHARAN, MUKKOTTUMUGHAL HOUSE v. THE STATE OF KERALA - Crl Rev Pet No. 2850 of 2006 [2006] RD-KL 709 (11 September 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2850 of 2006()

1. T.T.MANOHARAN, MUKKOTTUMUGHAL HOUSE,
... Petitioner

Vs

1. THE STATE OF KERALA, REPRESENTED BY
... Respondent

2. P.J.RAPHEL, PALLIPATTUPARAMBIL HOUSE,

For Petitioner :SRI.S.NIRMAL KUMAR

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :11/09/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2850 of 2006
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Dated this the 11th day of September, 2006

O R D E R

This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act. The cheque is for an amount of Rs.40,000/- Signature in the cheque is admitted. The notice of demand, though duly received and acknowledged, did not succeed in securing any payment. A reply was sent denying the liability, as Ext.P6. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused admitted the transaction, but contended that the actual loan amount was only Rs.12,000/- and not Rs.40,000/- It was further contended that the liability had been paid and discharged also.

3. The accused examined himself as DW1 and two witnesses as DWs. 2 and 3. DW2 is stated to be a person running a chitty, who had paid amounts on behalf of the petitioner to the complainant for Crl.R.P.No. 2850 of 2006 2 the discharge of the liability. DW3 is a co-worker of PW1 and the petitioner/accused. He was also examined in an attempt to prove the alleged real transaction between the parties.

4. The courts below, in these circumstances, chose to accept and act upon the oral evidence of PW1. The courts below found the admission of the signature in Ext.P1 to be relevant and crucial. The oral evidence of PW1 is eminently supported by his ability to produce Ext.P1 cheque with the signature of the petitioner affixed thereon. Admittedly the cheque leaf was issued to the petitioner by his bank to operate his account. The court below did not accept the specious and convenient plea that a blank signed cheque was issued as security. The self serving testimony of DW1 and the interested testimony of DWs. 2 and 3 were found to be not reliable. The plea of discharge without voucher, which is onerous by its very nature, was not proved satisfactorily. Accordingly the courts proceeded to pass the impugned concurrent judgments.

5. The learned counsel for the petitioner contends that the courts below erred grossly in choosing to accept and act upon the oral evidence of Crl.R.P.No. 2850 of 2006 3 PW1 as against the oral evidence of DWs. 1 to 3. In the light of the prompt reply Ext.P6, the court below must have preferred to accept and act upon the oral evidence of DWs 1 to 3 in preference to that of PW1. This in short is the contention raised. I am unable to accept the challenge raised. The evidence of PW1 in the light of his ability to produce Ext.P1 cheque is certainly found to be more trustworthy and acceptable. The attempt made through DWs. 1 to 3 and Ext.P6 to contend that the cheque was not issued for the due discharge of any legally enforcible debt/liability was, according to me, rightly not accepted by the courts below. In any view of the matter, the admitted signature in Ext.P1, coupled with the evidence of PW1 certainly makes the evidence of PW1 more acceptable. The courts below have not committed any error in not choosing to accept and act upon the improbable testimony of discharge without voucher attempted to be advanced through DWs. 1 to 3. The challenge must, in these circumstances, fail.

6. Leniency and indulgence to a fault has already been shown in favour of the petitioner by the courts below in imposing only a sentence of fine of the actual cheque amount. No further leniency is called for. Crl.R.P.No. 2850 of 2006 4 However it can be directed that the petitioner shall appear before the trial court on 15.11.2006 to pay the amount and to avoid the default sentence. Till then the sentence shall not be executed. If the fine amount is not paid by then, the learned Magistrate shall proceed to take necessary steps to execute the impugned sentence.

7. This revision petition is hence dismissed with the above observations/directions. (R. BASANT) Judge tm


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