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KUNJALAN P.M. v. UNNIKRISHNAN P.R. - Crl Rev Pet No. 2325 of 2006  RD-KL 260 (17 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 2325 of 2006()
1. KUNJALAN P.M., S/O. MAMMI,
1. UNNIKRISHNAN P.R.,
2. THE STATE OF KERALA,
For Petitioner :SRI.C.A.CHACKO
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2325 of 2006
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Dated this the 17th day of July, 2006
O R D E RThis revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.
2. The cheque is for an amount of Rs. 25,000/- The signature in the cheque is admitted. Handing over of the cheque is also admitted. But the contention is that cheque was not handed over to the complainant for the discharge of any legally enforcible debt or liability. The notice of demand, though received and acknowledged, did not evoke any response. The complainant examined himself as PW1 and a witness as PW2. Exts.P1 to P6 were marked. The accused examined himself as DW1 and proved Exts.D1 and D2.
3. The courts below, in these circumstances, concurrently came to the conclusion that the complainant has succeeded in Crl.R.P.No. 2325 of 2006 2 establishing all ingredients of the offence punishable under Section 138 of the N.I. Act. Accordingly they proceeded to pass the impugned concurrent judgments.
4. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contentions which were raised before the courts below. The contention that the cheque was issued as signed blank cheque for security in a transaction to another does not at all carry conviction. We have the evidence of PW1 about the circumstances under which the cheque duly signed by the accused found its way from the possession of the petitioner to the complainant. The self serving testimony of DW1 is insufficient to rebut the burden under Section 139 of the Act. Probabilities are heavily loaded against the petitioner. The only other contention is that the notice was not duly received and acknowledged by the petitioner. The courts below have considered these aspects in detail. The finding of fact recorded by the court below that Ext.P6 evidences the acknowledgment by the petitioner of receipt of the Crl.R.P.No. 2325 of 2006 3 notice of demand is found to be eminently reasonable and justified by the materials available. The challenge on this ground must also fail. No other contentions are raised on merits.
5. Coming to the question of sentence, the petitioner now faces a sentence of imprisonment till rising of court. There is a further direction to pay the actual cheque amount of Rs. 25,000/- as compensation and in default to undergo S.I. for a period of two months.
6. The counsel prays that leniency may be shown. It is prayed that the petitioner may be granted some further time to make the payment of compensation as directed by the court below. I am not satisfied that any further leniency needs or deserves to be shown. The cheque is dated 16.8.2000. The complainant has been compelled to fight two rounds of legal battle. Only the actual cheque amount has been directed to be paid. However it can be directed that the petitioner shall appear before the trial court on 1.9.2006 to serve the impugned sentence. Till then the sentence shall not be executed. If the petitioner does not so appear, the learned Magistrate shall thereafter take necessary steps to execute the impugned sentence. Crl.R.P.No. 2325 of 2006 4
7. This revision petition is hence dismissed with the above observations/directions. (R. BASANT) tm Judge tm
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