IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 CRL.REV.PET.NO. 2088 OF 2009() ------------------------------ CRA.411/2007 OF SESSIONS COURT, TRIVANDRUM ST.571/2006 OF JUDICIAL FIRST CLASS MAGISTRATE-II, VARKALA .................... REVN. PETITIONER(S): (APPELLANT/ACCUSED) ----------------------------------------------------------------- PRADEEP, S/O.VASUDEVAN PILLAI,PADIKKU MAMPUZHA VEEDU, MOONGODE DESOM,MOONGODE.P.O, OTTOOR VILLAGE,THIRUVANANTHAPURAM. BY ADV. SRI.M.R.RAJESH RESPONDENT(S): (RESPONDENTS/COMPLAINANT & STATE) ----------------------------------------------------------------------------------- 1. SUDHEER,S/O.GANGADHARAN,'SOUPARNIKA', PUTHENCHANTHA DESOM,VETTOOR VILLAGE, THIRUVANANTHAPURAM. 2. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 2088 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of June, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Sessions Judge, Thiruvananthapuram in Crl. Appeal No.411 of 2007 confirming conviction of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act but modifying the sentence. 2. Case arose on a private complaint preferred by respondent No.1. His case is that on 16.4.2005 petitioner borrowed Rs.90,000/- from him agreeing to repay the amount within one month and issued Exts.P1 and P2, cheques dated 16.5.2005 for Rs.40,000/- and Rs.50,000/-, respectively. Those cheques were dishonoured for insufficiency of funds as proved by Ext.P3, memo dated 20.6.2005. On getting dishonour intimation respondent No.1 issued notice to the petitioner on 13.7.2005. Issue and service of notice are proved by Exts.P4 to P6. Finding of courts below regarding cause of dishonour and issue and service of notice are not under challenge. Challenge in this revision is regarding due execution of the cheque. 3. According to the petitioner he had an earlier transaction with respondent No.1 and issued cheques in connection with that. Respondent No.1 then filed S.T. No.509 of 1996. It is also the version CRL. R.P. No.2088 of 2009 -: 2 :- of petitioner that out of the sum of Rs.90,000/- which he owed to respondent No.1 and involved in S.T. No.509 of 1996 he paid Rs.85,000/-. Respondent No.1, claiming interest has presented the cheques (Exts.P1 and P2). 4. Respondent No.1 gave evidence as P.W.1 and stated to his case. He asserted that petitioner borrowed Rs.90,000/- from him on 16.4.2005 and for repayment of that amount issued Exts.P1 and P2, cheques. He denied the suggestion that the amount borrowed was as stated in S.T. No.509 of 1996 and that out of that amount, Rs.85,000/- was paid to him. Courts below were not inclined to accept the explanation offered by the petitioner as to the circumstances in which Exts.P1 and P2 came to the hands of respondent No.1. It is not disputed that Exts.P1 and P2 are drawn by petitioner on the account maintained by him and handed over to respondent No.1. According to respondent No.1 cheques were issued to him for repayment of the sum of Rs.90,000/-. Petitioner apart from making suggestions to respondent No.1 did not adduce evidence or bring out any circumstance to prove or probabilise his case. It is also pertinent to note that in spite of being served with notice demanding payment of Rs.90,000/- as per Exts.P1 and P2 petitioner did not reply. These CRL. R.P. No.2088 of 2009 -: 3 :- circumstances were taken into account by the courts below to hold that contention raised by petitioner regarding execution of cheques is not proved or probabilised. Finding of the courts below rested on a proper appreciation of evidence. That finding is not vitiated by any illegality, irregularity or impropriety calling for interference in revision. Hence conviction of petitioner does not call for interference. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months and directed him to pay Rs.90,000/- as compensation. In default of payment simple imprisonment for one month was awarded. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Instead of compensation petitioner was directed to pay fine of Rs.90,000/- and in default of payment to undergo simple imprisonment for six months. It was directed that fine if realised shall be given to respondent No.1 as compensation. I do not find reason to interfere with the sentence as modified by the appellate court, direction for payment of fine and the default sentence. 6. Counsel for petitioner requested five months’ time to deposit the fine. Counsel submits that petitioner is unable to raise the amount immediately. Considering the circumstances stated by CRL. R.P. No.2088 of 2009 -: 4 :- counsel I am inclined to grant four months’ time to petitioner to deposit the fine in the trial court. Resultantly, this revision fails. It is dismissed. Petitioner is granted four months’ time from this day to deposit the fine in the trial court. Petitioner shall appear in the trial court on 2.11.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. No.2088 of 2009 -: 5 :-