IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Crl.Rev.Pet.No. 2821 of 2009() ------------------------------ CRA.835/2007 of ADDITIONAL SESSIONS JUDGE, KOZHIKODE S.T.No.2268 OF 2007 OF JFCM COURT II (MOBILE), KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- T.K.ABOOBACKER, KAIRALI GARMENTS INDUSTRIES, SHOP NO.9/390, P.O.NARIKKUNI, KOZHIKODE DISTRICT. BY ADV. SRI.P.SANJAY SRI.M.MUHAMMED SHAFI RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. M/S.PRIME TEXTILES, RUBY BUILDING, RAJAJI ROAD, CALICUT-4, REP.BY ITS PARTNER, K.P.REGHUTHAMAN. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON 28/08/2009 PASSED THE FOLLOWING: .THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2821 of 2009 --------------------------------------- Dated this 28th day of August 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track (ADHOC-II), Kozhikode in Criminal Appeal No.835 of 2007 confirming conviction and sentence of petitioner in S.T.No.2268 of 2007 of the court of learned Judicial Magistrate of First Class-2 (Mobile), Kozhikode for offence punishable under section 138 of the Negotiable Instruments Act. Respondent No.1 is a partnership firm engaged in textile business. Its case is that petitioner purchased textiles and for the sum of Rs.46,870.55/- due to it issued Ext.P1 cheque dated 09-05-1996. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Issue and service of statutory notice on petitioner are proved by Exts.P4 to P6. Ext.P7 is the reply dated 20-06-1996. Contention raised by petitioner in Ext.P7 and in the trial court is that no amount is due to respondent No.1 and that at the time of transaction, a cheque was given as security which has been misused. It is contended in this revision that due execution of the cheque is not proved. Crl.R.P.No.2821 of 2009 2 3. It is not disputed by the petitioner that he had transaction with respondent No.1. A further fact which is admitted is that he had given the cheque signed and drawn on his account to respondent No.1 in connection with that business transaction. The contention of petitioner is that cheque was given as security is not proved or probabilised. On the other hand PW1 has given evidence regarding transaction leading to execution of the cheque. Courts below found that there is no reason to disbelieve the evidence of PW1 as to the due execution of cheque. Petitioner has not rebutted the presumption under section 139 of the Act. Therefore there is no reason for interference with the finding of the courts below as to the execution of the cheque. Conviction does not call for interference. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment till rising of the court. There was a direction for payment of compensation of Rs.60,000/- to respondent No.1. A default sentence of simple imprisonment for two months is also provided. Appellate court did not interfere with the sentence, direction for payment of compensation or the default sentence. Having regard to the nature of the offence and the amount involved I do not find reason to interfere with the sentence, direction for payment of compensation or the default sentence. 5. Learned counsel requested that petitioner may be granted Crl.R.P.No.2821 of 2009 3 five months' time to deposit compensation. It is stated that petitioner is placed in a financially difficult situation that he has not able to raise the entire amount immediately. Considering the circumstances stated by learned counsel, petitioner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision petition fails and accordingly it is dismissed. Petitioner is granted time till 30-12-2009 to deposit compensation in the trial court as ordered by that court. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of compensation within the period aforesaid. Petitioner shall appear in the trial court on 02-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 02-01- 2010. THOMAS P JOSEPH, JUDGE Sbna/