IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.Rev.Pet.No. 2096 of 2009() ------------------------------ CRA.346/2007 of ADDL DISTRICT AND .SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.214/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- THOMAS, S/O.LATE MATHEW, NARITHOOKKIL HOUSE PALLATHUPARAYIDATHIL, PAIKA, POOVARANI PO. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN SRI.N.SUNIL JOSEPH RESPONDENT(S)/RESPONDENTS/STATE AND COMPLAINANT: --------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. P.D.DEVASIA, S/O.DEVASIA, PURAYIDATHIL HOUSE URULIKUNNAM, POOVARANI PO, KOTTAYAM DISTRICT. PUBLIC PROSECUTOR SHIR C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2096 of 2009 -------------------------------------- Dated this the 2nd day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Kottayam in Crl.Appeal No.346 of 2007 confirming conviction but modifying the sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case arose on a private complaint preferred by respondent No.2 alleging that petitioner borrowed Rs.1,50,000/- from him and for repayment of that amount with interest issued Ext.P1, cheque dated 12.2.2006. That cheque was presented for encashment but it was returned as account was closed. Respondent No.2 issued statutory notice to the petitioner. Notice was served on him but he did not pay the amount and hence the complaint. Dishonour of the cheque as account was closed is proved by Exts.P2 and P6 series. Issue and service of statutory notice are proved by Exts.P3 to P5. Finding of the courts below regarding cause of dishonour and service of statutory notice are not challenged before me. It is contended that finding of the courts below regarding execution of the cheque is not correct and sustainable. Crl.R.P.No.2096/2009 2 3. Respondent No.2 gave evidence as PW1 and stated that petitioner borrowed Rupees one lakh from him on 11.11.2005 and another sum of Rs.50,000/- from him on 12.12.2005 on executing demand promissory notes. Petitioner had agreed to repay the said amount with interest at the rate of 18% per annum. On 12.12.2006 petitioner issued the cheque for a total sum of Rs.1,56,000/- which takes Rs.6,000/- by way of the interest on the principal sum of Rs.1,50,000.- Petitioner contended that he had borrowed only Rupees one lakh from respondent No.2 and at that time given a signed blank cheque as security. He repaid the amount but respondent No.2 did not return the cheque. According to the petitioner, that cheque was misused. 4. So far as transaction is concerned, respondent No.2 has given evidence. It is true that the demand promissory notes referred by respondent No.2 are not produced but it has to be borne in mind that this is a prosecution for offence punishable under Section 138 of the Act and hence, obligation of respondent No.2 is to prove due execution of the cheque as pleaded by him. On such proof it is for the petitioner to show that the cheque was not issued for the discharge of any debt or liability. In this case, petitioner does not dispute that he had borrowed money from respondent No.2 and in connection with that, cheque in question was given to respondent No.2. His dispute is regarding the amount borrowed and its repayment. He would say that he had borrowed only Rupees one lakh and that amount was repaid. There is no evidence, oral or documentary or any circumstance to hold that petitioner had borrowed only Rupees one lakh or that of any amount was repaid to respondent No.2. Crl.R.P.No.2096/2009 3 Petitioner was served with a notice informing dishonour of the cheque for Rs.1,50,000/- and demanding payment of that amount. Even at that time petitioner did not think it necessary to reply taking up the contention that he is now pressing into service. Failure to reply to the notice is relevant and material. Courts below found that there is nothing to disbelieve respondent No.2. In the circumstances there is little reason to interfere with the finding of the courts below regarding execution of the cheque. Petitioner failed to rebut the presumption appearing against him. Conviction therefore cannot assailed. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for nine months and directed him to pay of Rs.1,25,000/- as compensation. Default sentence of imprisonment for two months was also provided. Appellate court modified substantive sentence as simple imprisonment till rising of the court and converted compensation into fine of Rs.1,25,000/-. Default sentence of imprisonment for six months was also provided. Having regard to the nature of the offence and the amount involved there is little reason to interfere with the sentence as modified by the appellate court, at the instance of the petitioner. 6. Learned counsel for petitioner requested four months’ time to deposit fine in the trial court. Having regard to the difficulties expressed by the petitioner and the amount involved I am inclined to grant three months’ time to the petitioner to deposit fine in the trial court. Crl.R.P.No.2096/2009 4 Resultantly this revision fails. It is dismissed. Petitioner is granted three months’ time from today to deposit the fine in the trial court. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 5.10.2009. THOMAS P.JOSEPH, Judge. cks