IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.REV.PET.NO. 1826 OF 2009() ----------------------------------------------- CRA.295/2008 OF SESSIONS COURT, KOTTAYAM ST.2515/2007 OF JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ----------------------------------------------------------------- UNNIKRISHNAN NAIR,S/O.SANKARA PILLAI, DEVIVILASAM HOUSE,CHAMPAKARA KARA,TOMMICHERI.PO, KARUKACHAL VILLAGE,CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ----------------------------------------------------------------------------------- 1. K.P.SUKUMARAN,KADATHRA HOUSE,KUMARAKOM KARA,KUMARAKOM VILLAGE,KOTTAYAM. 2. STATE OF KERALA,REPRESENTELD BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1826 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of June, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is challenging the legality, regularity and propriety of judgment of learned Sessions Judge, Kottayam in Crl.Appeal No.295 of 2008 whereby conviction of petitioner entered by the trial court for offence punishable under Section138 of the Act was confirmed but the sentence was modified. 3. Respondent No.1 filed a private complaint alleging that petitioner borrowed Rs.70,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 16.1.2006. That the cheque was dishonoured for insufficiency of funds and that statutory notice intimating dishonour and demanding payment of the amount was issued and served on the petitioner are proved by Exts.P2 to P5. There is no challenge in this revision against the findings of the courts below as to the dishonour of cheque and issue and service of statutory notice. Challenge is to the finding that petitioner issued the cheque for the discharge of a legally enforceable debt/liability. CRL. R.P.No.1826 of 2009 -: 2 :- 4. Respondent No.1 gave evidence as P.W.1 and stated that petitioner borrowed Rs.70,000/- and for discharge of that liability issued Ext.P1, cheque dated 16.1.2006. According to the petitioner he had borrowed only Rs.30,000/- from respondent No.1 and at that time given signed blank cheque as security which was misused by respondent No.1. 5. Petitioner has not adduced any evidence or brought out circumstances to prove or probabilise his contention that he had borrowed only Rs.30,000/- or that he issued any signed blank cheque at that time. Petitioner did not also reply to the statutory notice admittedly served on him. On the other hand there is evidence of respondent No.1 as P.W.1 regarding the transaction and execution of the cheque. That, Ext.P1, cheque is drawn on the account maintained by the petitioner and it contained his signature are admitted and proved. That certainly went a long way in proving due execution of the cheque. It is also admitted by the petitioner that he had financial transaction with respondent No.1 though according to the former it was only to the tune of Rs.30,000/- which he was not able to prove or even probabilise. What is available is only the suggestion in that regard to respondent No.1 (P.W.1) which he denied. Nothing is CRL. R.P.No.1826 of 2009 -: 3 :- brought out to disbelieve the evidence of respondent No.1. Courts below have considered these aspects and found in favour of due execution of the cheque and failure of petitioner to rebut the presumption under Sec.139 of the Act. Hence conviction of the petitioner required no interference. 6. Learned magistrate sentenced petitioner to undergo simple imprisonment for two months and pay fine of Rs.10,000/-. Default sentence for two months was also awarded in case of non- payment of fine. In appeal substantive sentence was modified as simple imprisonment till rising of the court. But fine payable by the petitioner was fixed as Rs.70,000/-. Default sentence of imprisonment for three months was also ordered. In so far as substantive sentence has been modified and reduced it cannot be said that there is enhancement of sentence in the appeal preferred by the petitioner against his conviction and sentence. It was within the power of the appellate court while modifying and reducing substantive sentence to enhance fine. I do not find reason to interfere with the sentence as modified by the appellate court. 7. Counsel requested that petitioner may be granted six months' time to deposit the fine in the trial court. Counsel submitted CRL. R.P.No.1826 of 2009 -: 4 :- that petitioner is not having any permanent job and would find it difficult to raise the sum of Rs.70,000/- immediately. Having regard to the circumstances stated by the counsel and the amount involved, I am inclined to grant four months to the petitioner to deposit the fine in the trial court as ordered by the appellate court and in default of payment to undergo simple imprisonment for three months as ordered by the appellate court. Resultantly, revision fails. It is dismissed. Petitioner is granted four months' time from this day to deposit the fine in the trial court as ordered by the appellate court. In case of failure, petitioner shall undergo simple imprisonment for three months as ordered by the appellate court. Petitioner shall appear in the trial court on 12.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv