IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 CRL.REV.PET.NO. 1667 OF 2009() ------------------------------ CRA.771/2008 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC - III) NORTH PARAVUR CC.1047/2005 OF JUDL. MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S):APPELLANT/ACCUSED ------------------------------------------------------------- P.K.ARAVINDAN,S/O.KUMARAN NAIR, AGED 59 YEARS,"LAKSHMI NIVAS", WEST KADUNGALLOOR P.O.,(VIA) ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT(S): RESPONDENTS/COMPLAINANT ---------------------------------------------------------------------- 1. T.J.WILSON,S/O.JOSEPH,AGED 66 YEARS, THAIPPARAMBIL HOUSE,ELOOR SOUTH, THEKKUMBHAGAM VILLAGE,ERNAKULAM DISTRICT. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1667 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of May, 2009 O R D E R -------------- Concurrent finding entered by the courts below regarding due execution of the cheque is under challenge in this revision. 2. Petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case of respondent No.1 is that petitioner borrowed Rs.10,00,000/- from him for his business purpose on 3.9.2003 and issued two cheques for Rs.5,00,000/- each. Exhibit P1 is the cheque dated 3.12.2004 for Rs.5,00,000/- drawn on Bank of Baroda. Dishonour of that cheque when presented through State Bank of Travancore, Udyogamandal for insufficiency of funds is proved by Ext.P2. Issue and service of statutory notice are proved by Exts.P3 and P4. Respondent No.1 gave evidence as P.W.1 and testified to his case. He examined P.W.2 also to prove the transaction. Contention raised by the petitioner is that agreeing that respondent No.1 would be taken as a Director in the company of petitioner, an agreement was executed. Petitioner demanded Rs.10,00,000/- but the latter paid only Rs.7,00,000/-. Cheques were given at that time. Amount paid by respondent No.1 was deposited in the account of petitioner. Out of that amount he CRL. R.P. No.1667 of 2009 -: 2 :- returned Rs.3,90,000/- to respondent No.1 through one Madhavan Nair (D.W.2) as per demand draft. Petitioner gave evidence as D.W.1. D.W.2 stated that he took a demand draft on 13.12.2003 for Rs.3,90,000/- in favour of respondent No.1 as requested by petitioner. Exhibit D1 is the letter issued to him from his Bank to the effect that he had taken such demand draft in favour of respondent No.1. Evidence of P.W.2, financial consultant is that he arranged loan of Rs.83,00,000/- for petitioner from the State Bank of Travancore and he introduced respondent No.1 to the petitioner. As per his direction respondent No.1 gave Rs.10,00,000/- to the petitioner and Ext.P5, agreement was executed. Respondent No.1 paid the amount and petitioner issued the cheques in his presence. 3. Exhibit P5 is the copy of the agreement dated 3.9.2003 executed by petitioner and his wife in favour of respondent No.1. That agreement states that Rs.83,00,000/- was sanctioned to the petitioner from State Bank of Travancore for his business and for payment of margin money of Rs.10,00,000/-, petitioner took that amount by way of loan from respondent No.1. The agreement further states that petitioner gave two cheques (including Ext.P1) to respondent No.1 for repayment of that amount. 4. It is contended by learned counsel that due execution of CRL. R.P. No.1667 of 2009 -: 3 :- the cheque is not proved. But, in the light of evidence of P.Ws.1 and 2 and Ext.P5, I am unable to accept that contention. Exhibit P5 which is not under challenge proves payment of Rs.10,00,000/- to the petitioner and his issuing cheques including Ext.P1 to respondent No.1. Petitioner as D.W.1 admitted that he received Rs.10,00,000/- for payment to the Bank as margin money. He admits that he took money from respondent No.1 but according to him, only Rs.7,00,000/-. He also admits that the Bank allowed the loan only on his paying margin money of Rs.10,00,000/-. Evidence given by P.Ws.1 and 2 is in tune with Ext.P5. Amount paid by D.W.2 as per demand draft is not shown to be in respect of the transaction in question. There is no reason to disbelieve the evidence of P.Ws.1 and 2. Petitioner did not also reply to the notice served on him in spite of the fact that a fairly large amount was claimed from him. That was the earliest opportunity when petitioner could have stated about the transaction in the way he now pleads. Petitioner has no proper explanation for not replying to the notice. Courts below have considered the evidence of both sides and concluded in favour of due execution of the cheque as pleaded by respondent No.1. Petitioner was not successful in rebutting the presumption against him. 5. At the time of final hearing of the case in the trial court a CRL. R.P. No.1667 of 2009 -: 4 :- contention was raised as to the alleged lack of jurisdiction of that court. Learned magistrate found that the said contention having been raised only at the fag end of the proceedings cannot be entertained in view of the decision in Meenakshi v. Udayakumar (2007 (4) KLT 620). Though counsel for petitioner reiterated that argument before me as well, I am unable to entertain that argument for the said reason. In the circumstances of the case conviction entered on the petitioner required no interference. 6. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one year. Petitioner was directed to pay compensation of Rs.5,00,0000/-. In appeal substantive sentence was modified as simple imprisonment for six months and compensation was converted into fine with a default sentence of simple imprisonment for two months. Having regard to the nature of the offence and the amount involved I am satisfied that simple imprisonment till rising of the court and fine as awarded by the appellate court with default sentence are sufficient in the ends of justice. 7. Counsel for petitioner requested four months' time to deposit the fine in the trial court. Counsel submitted that between the same parties there is another case pending which also involved CRL. R.P. No.1667 of 2009 -: 5 :- Rs.5,00,000/-. Considering all relevant facts and circumstances I am inclined to grant four months' time to the petitioner to deposit the fine. Revision Petition is allowed in part to the following extent. (i) Sentence awarded to the petitioner is modified as simple imprisonment till rising of the court and fine as awarded by the appellate court. In case of default, petitioner shall undergo simple imprisonment for three (3) months. (ii) Petitioner is granted four months' time from this day to deposit the fine as ordered by the appellate court, in the trial court. (iii) Fine if realised shall be paid to respondent No.1 as compensation. (iv) The default sentence for non- payment of fine shall be undergone consecutively with the default sentence in the connected case (C.C. No.1049 of 2005). Petitioner shall appear in the trial court on 1.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv