IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 Crl.Rev.Pet.No. 1861 of 2009() ------------------------------------- AGAINST JUDGMENT DTD 13.5.09 IN CRA.125/2007 of ADDL. SESSIONS JUDGE (FAST TRACK)(ADHOC)-II, TRIVANDRUM AGAINST ST.616/2006 DTD 27.1.2007 OF JUDICIAL FIRST CLASS MAGISTRATE-VI, THIRUVANANTHAPURAM. .................... REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------ C.PONNUMANI,SOMASADANAM,OBSERVATORY LANE, THIRUVANANTHAPURAM. BY ADV. MR.M.RAMASWAMY PILLAI MR.P.M.JOSEPH RESPONDENT(S): RESPONDENTS/COMPLAINANT ---------------------------------------------------------- 1. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. L.SOMASUSEELAN,USHA BHAVAN,THIRUMALA, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR MR. KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1861 OF 2009 ---------------------------------------- Dated this the 15th day of June, 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 make which is not prejudicial to him. 2. This revision is in challenge of concurrent findings entered by the courts below regarding due execution of the cheque, its dishonour for insufficiency of funds, failure of petitioner to pay the amount in spite of statutory notice and his failure to rebut the presumption under Section 139 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner borrowed Rs.1 lakh from him and for repayment of that amount petitioner issued cheque dated 10.4.2002. Ext.P1 is the cheque. Dishonour of that cheque for insufficiency of funds on 15.4.2002 is proved by Ext.P2. Issue and service of notice on the petitioner are admitted, and proved by Exts.P3 and P4 series. Ext.P5 is the reply which according to respondent No.2 contained false contentions. Respondent No.2 Crl.R.P.1861/2009 2 gave evidence as PW1 and stated that petitioner borrowed Rs.1 lakh from him and issued post dated cheque for repayment of the debt. Petitioner gave evidence as DW1. He claimed that he had borrowed Rs.45,000/- from respondent No.2 in the year, 1998 and had then given a cheque as security. He re-paid the amount by March, 2002 in instalments at the rate of Rs.2,000/- per month but the cheque was not returned. He also raised a contention that notice (Ext.D1 is the original and Ext.P3 is its copy) is invalid in the sense that a different cheque number is given in that notice. 3. It is contended by learned counsel that finding of the courts below as to the execution of the cheque is erroneous. It is also contended that the notice cannot be taken as one as required in Section 138(b) of the Act. 4. So far as execution of the cheque is concerned it is true that petitioner gave evidence as DW1 and set up a different case as to how the cheque happened to be in the custody of respondent No.2. It is admitted by petitioner also that he had financial transaction with respondent No.2 and it was in connection with that, the cheque was given. According to the petitioner, he had borrowed only Rs.42,000/- and, that Crl.R.P.1861/2009 3 too, in the year 1998 and then the cheque was given to respondent No.2. But in that regard, what is available is only evidence of petitioner as DW1. He has not substantiated his contention by adducing reliable evidence. Petitioner could have summoned the relevant documents from the drawee bank to show that cheques issued to him prior to and after Ext.P1 were encashed some time in the year 1998. No such evidence is adduced, nor even attempted to . It is difficult to think that in spite of petitioner discharging liability by March 2002, respondent No.2 refused to handover the cheque and petitioner kept mum about that. He did not take any steps to get back the cheque from respondent No.2 who allegedly retained it as against the understanding between them. If the liability was discharged in 1998 and in spite of that the cheque was not returned, petitioner would have asked the drawee bank to stop payment on that cheque. That also was not done. Nothing is brought out to disbelieve the evidence of respondent No.2. It is in these circumstances that courts below did not accept the evidence of petitioner as DW1. I do not find anything illegal or irregular in the finding of the courts below. 5. Next contention is regarding the invalidity of the Crl.R.P.1861/2009 4 notice. It is true that going by Exts.P1 and P3 there is a mistake in the cheque number given in the notice. But, that by itself will not invalidate the notice. Petitioner has no case that he had given another cheque bearing the number mentioned in the notice to respondent No.2 in connection with the present transaction or any other transaction. Petitioner had given, only one cheque to respondent No.2, and that is Ext.P1 though its number was wrongly mentioned in Ext.P3 (Ext.D1). As such it cannot be said that petitioner was mislead by mistake in the notice or that the mistake made that notice invalid. On going through the judgments and hearing learned counsel, I do not find reason to interfere with the conviction of the petitioner. 6. Learned magistrate sentenced petitioner to undergo Simple Imprisonment for five months and directed payment of compensation of Rs.1,00,000/- (Rupees one lakh only) with default sentence of one month. Appellate court while confirming the direction for payment of compensation and default sentence, reduced the substantive sentence to Simple Imprisonment till rising of the court. I do not find reason or scope to interfere with the sentence as modified by the appellate court or the direction for payment of compensation Crl.R.P.1861/2009 5 and the default sentence. 7. Learned counsel for petitioner requested six months' time to enable petitioner deposit compensation in the trial court. Learned counsel stated that petitioner is in no sound financial position to deposit Rs.1 lakh immediately. Considering the circumstances stated by learned counsel and the amount involved, I am inclined to grant four months' time to deposit the amount in the trial court. Resultantly this revision fails. It is dismissed. Petitioner is granted four months' time from today to deposit compensation in the trial court. It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the aforesaid time. Petitioner shall appear in the trial court on 19.10.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd