Criminal Revision Petition No. 1988 of 2009 · Kerala High Court · 2009

BY ADV. SRI.A.AHZAR RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE. -------------------------------------------------

THE KERALA STATE POULTRY DEVELOPMENT CORPORATION LTD, POULTRY COMPLEX, HOTCHERY UNIT, KUDAPPANAKUNNU, THIRUVANANTHAPURAM.

STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1988 of 2009 -------------------------------------- Dated this the 23rd day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to it. Public Prosecutor takes notice for respondent No.2.

2. Petitioner faced trial in the court of learned Judicial Magistrate of First Class-IV (Mobile Court),Thiruvananthapuram in C.C.No.887 of 2004 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”), on a complaint preferred by respondent No.1. Respondent No.1 is a corporation owned and controlled by the State Government and engaged in poultry development. According to respondent No.1, petitioner purchased broiler chicken from it on credit and for the sum of Rs.71,278/- due to it petitioner issued Ext.P2, cheque dated 27.3.2002. That cheque was dishonourd for insufficiency of funds. On getting dishonour intimation respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Dishonour of the cheque for reason above stated and issue and service of notice on petitioner are proved by Exts.P3 to P8. There is no challenge to the finding of the courts below as to the cause of dishonour and issue and service of notice on petitioner. Power of attorney holder of respondent No.1 gave evidence as PW1. Ext.P1 is the power of attorney. Challenge is to Crl.R.P.No.1988/2009 2 finding regarding execution of the cheque is for discharge of a legally enforceable debt/liability. PW1 stated that petitioner used to purchase broiler chicken from respondent No.1 on credit and for the amount due issued the cheque. Contention of the petitioner is that she had business with respondent No.1 during 1998-2000 and in the year 1998, she had given signed blank cheques as security. No amount is due to respondent No.1. She proved Ext.D1 series and Ext.D2 series, a few bills and receipts issued by respondent No.1. Courts below found that Ext.D1 series Ext.D2 series do not in any way affect the liability of petitioner under Ext.P2, found her guilty and convicted her under Section 138 of the Act. It is contended that conviction is not legal and proper. According to the petitioner, liability has been wiped off as per Ext.D2 series.

Courts below found that Ext.D2 series are for the period prior to Ext.P2, cheque dated 27.3.2002. It is also found that Ext.D2 series are not in respect of the amount referred in Ext.P2. A further fact found by the courts below is that in Ext.P8, reply sent on behalf of the petitioner it is admitted that amount is due as per Ext.P2 and she only requested for instalment facility repayment. That being the position, Ext.D2 series cannot be accepted. to hold that the liability under Ext.P2 is discharged. Apart from producing Ext.D2 series, petitioner could not successfully challenge the claim of respondent No.1 that amount is due to it as per Ext.P2. No attempt was made to summon the relevant records from respondent No.1 if petitioner had a case that such records would indicate that she had no liability to respondent No.1. Courts below have Crl.R.P.No.1988/2009 3 considered the evidence in the light of Ext.D1 series and Ext.D2 series and concluded that petitioner owed Rs.71,278/- to respondent No.1 and for payment of that amount she issued the cheque. I do not find reason to interfere with that finding as no illegality, irregularity or impropriety is involved. Petitioner failed to rebut the presumption under Section 139 of the Act. Hence conviction is legal and proper and required no interference.

Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.71,278/- to respondent No.1 under Section 357(3) of the Code of Criminal Procedure. A default sentence of simple imprisonment for one month was also provided. Appellate court modified the substantive sentence as one till rising of the court. Direction for payment of compensation as well as default sentence were confirmed. There is no reason to interfere with either. Learned counsel submitted that petitioner has certain other liabilities also with private parties and sought six months' time to deposit compensation. It is seen from the judgment of learned Additional Sessions Judge that two months' time was granted to the petitioner to deposit the compensation. However considering the submission of learned counsel and the amount involved, I am inclined to grant three months further time to the petitioner to deposit compensation in the trial court as ordered by the courts below. Resultantly, this revision fails. It is dismissed. Petitioner is granted three months' time from today to deposit the compensation in the trial court as ordered by the courts below failing which she shall undergo the default sentence Crl.R.P.No.1988/2009 4 as ordered by the courts below. Petitioner shall appear in the trial court on

25.9.2009 to receive the sentence. Crl.M.A.No.6007 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge.