IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Crl.Rev.Pet.No. 3588 of 2009() ------------------------------ CRA.551/2006 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.509/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- T.NANDAKUMAR, S/O.K.V.THANKAPPAN AGED 44 YEARS, KALANIVAS, KUNNUMPURAM,MUTTADA PO, THIRUVANANTHAPURAM. BY ADV. SRI.SREEKANTH S.NAIR RESPONDENTS: RESPONDENT/STATE & COMPLAINANT ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.V.AJAKUMAR ABHIRAMAM,NEAR MARIAPPANKODU TEMPLE, MUKKOLA, KUDAPPANAKUNNU,THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.3588 of 2009 ------------------------------------- Dated this the 16th day of November, 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty and conviction under Section 138 of the N.I Act and the modified sentence imposed by the appellate court. 2. The cheque is for an amount of Rs.90,000/-. It bears the date 02.04.2003. The signature in the cheque is admitted. Handing over of the cheque to the complainant is not disputed. The only contention is that the cheque was issued not for the due discharge of any legally enforcible debt/liability, but only as security when an amount of Rs.10,000/- was borrowed from the complainant. 3. The complainant examined himself as PW1 and proved Exts.P1 to P5. The accused did not raise any vital or crucial contention. Except to assert that the cheque was not issued for the due discharge of a legally enforcible debt/liability, no attempt was made to discredit the case of the complainant. 4. That the cheque is drawn on a cheque leaf issued to the petitioner/accused by his bank to operate his account is not Crl.R.P No.3588 of 2009 2 disputed. That the cheque bears the signature of the accused is again not disputed. That the signed cheque was handed over to the complainant by the accused is accepted. That there was a transaction between the parties and there was a liability to be discharged by the accused to the complainant is also accepted. 5. The only contention is that the real liability was only Rs.10,000/- and not Rs.90,000/- as Ext.P1 now shows. Here also it is relevant to note that though notice of demand incorporating the present claim was issued (Ext.P3 is the copy) under Ext.P4 postal receipt and was acknowledged under Ext.P5, the same did not evoke any response. No evidence - oral or documentary, has been adduced by the accused. 6. The courts below concurrently came to the conclusion that all ingredients of the offence punishable under Section 138 of the N.I Act have been established by the complainant. Accordingly they proceeded to pass the impugned concurrent judgments. 7. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent verdict of guilty and conviction and the modified sentence imposed, the learned counsel for the petitioner Crl.R.P No.3588 of 2009 3 reiterates the contention that the cheque was issued not for the due discharge of any legally enforcible debt/liability, but only as security for due repayment of a loan of Rs.10,000/- availed of by the petitioner from the complainant. 8. There is not a scintilla of material in support of this theory. The oral evidence of PW1 is corroborated materially by his ability to produce Ext.P1 cheque signed by the accused and drawn on a cheque leaf issued to the accused by his bank. His evidence is found to be eminently acceptable. No evidence or circumstances have been placed before court to persuade it to accept that the cheque was issued as security and not for the discharge of a legally enforcible debt/liability. The cumulative effect of the circumstances of this case eminently point to the correctness of the conclusion of the courts below that all ingredients of the offence under Section 138 of the N.I Act have been established by the complainant by evidence tendered by him - oral and documentary. 9. It is then submitted that the sentence imposed is excessive. Leniency to the extent possible appears to have been already shown in favour of the petitioner by the courts below. The substantive sentence of imprisonment till rising of court Crl.R.P No.3588 of 2009 4 coupled with a direction to pay the actual cheque amount only as compensation has been imposed by the lower appellate court. Default sentence imposed is also absolutely reasonable - S.I for a period of 2 months. In any view of the matter, I am not satisfied that the sentence imposed warrants interference in revision. 10. The learned counsel for the petitioner finally prays that breathing time may be given to the petitioner to pay the compensation amount and thus avoid the default sentence. I am satisfied that a short further time can be granted to the petitioner to make the payment and avoid the default sentence. 11. In the nature of the order that I choose to pass, I am satisfied that, it is not necessary to wait for issue and return of notice to the respondent. 12. In the result: a) This Crl.R.P is dismissed; b) The impugned verdict of guilty and conviction and modified sentence imposed by the appellate court under Section 138 of the N.I Act are upheld; c) The petitioner shall have time till 16.01.2010 to pay the amount and avoid the default sentence; d) The impugned sentence shall not be executed till 16.01.2010; Crl.R.P No.3588 of 2009 5 e) The petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the impugned sentence on or before 16.01.2010; f) If the petitioner does not appear before the learned Magistrate on 16.01.2010, the learned Magistrate shall proceed to take necessary steps to execute the impugned sentence. (R.BASANT, JUDGE) rtr/-