IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl.Rev.Pet.No. 1916 of 2009 ------------------------------ CRA.531/2008 of SESSIONS COURT, KOTTAYAM ST.614/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER/ APPELLANT/ACCUSED: -------------------------------------- P.MOHANAN PILLAI, GAYATHRI NIVAS, K.V.M.S.ROAD, PONKUNNAM P.O. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT/RESPONDENT/STATE & COMPLAINANT --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MURALEEDHARAN NAIR, VALIYAPOOVATHOLIL HOUSE, T.P.PURAM P.O., VAZHOOR VILLAGE. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1916 of 2009 --------------------------------------- Dated this 22nd day of June 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in Crl. Appeal No. 531/08 confirming conviction of the petitioner for offences punishable under Sec.138 of Negotiable Instruments Act (for short, “the Act”) but modifying the sentence. Notice to respondent No.2 is dispensed in view of the order I am proposing to pass in this revision which is not prejudicial to him. 2. Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.1. According to respondent No.2, petitioner borrowed Rs.70,000/-from him on 10.06.06 and for repayment of that debt issued Ext.P1, cheque dated 12.07.06. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2 and P3. On getting dishonour intimation on 02/08/06 respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Ext.P4 is the copy of notice dated 19/08/06. Issue and service of notice are proved by Crl.R.P.No.1916/09 2 Ext.P5 and Ext.P6. Finding of the courts below as to the cause of dishonour and issue and service of notice are not challenged. 3. Challenge is to the finding regarding execution of the cheque. Respondent No.2 gave evidence as PW1 and stated that petitioner borrowed Rs.70,000/- from him and issued the cheque for repayment of that debt. According to the petitioner he had borrowed only Rs.5,000/- from respondent No.2. At that time he had given a signed blank cheque. He repaid that amount to respondent No.2, but he did not return the cheque. 4. It is true that petitioner being an accused was not required to adduce evidence on his side. But he has to show that his version is probable either by adducing evidence or by bringing out circumstances from the evidence of respondent No.2. Respondent No.2 denied the suggestion that he lent only Rs.5,000/- and that amount was repaid. There is no acceptable evidence to show that the transaction was only regarding Rs.5,000/- or for repayment of the said amount. Ext.P4, notice demanding payment of Rs.70,000/- was served on the petitioner. But petitioner did not Crl.R.P.No.1916/09 3 reply to that notice also. Nothing is brought out to disbelieve the evidence of respondent No.2. Courts below, in the circumstances found in favour of due execution of the cheque. I do not find reason to interfere with that finding. Petitioner has failed to rebut the presumption under Sec.139 of the Act. Hence conviction needs no interference. 5. Appellate court modified the substantive sentence as imprisonment till rising of the court. Direction issued by learned magistrate for payment of compensation of Rs.70,000/- and in default of payment to undergo simple imprisonment for one month were confirmed. There is no reason to interfere of the sentence as modified and the direction for payment of compensation with the default sentence as confirmed by the appellate court. 6. Learned counsel submitted that petitioner has suffered a fracture in the course of his employment in the year 2006 and he is undergoing treatment. Learned counsel produced for my perusal the certificate discharge issued from Medical Trust Hospital, Ernakulam which shows that Sri. P Mohanan was admitted in that Crl.R.P.No.1916/09 4 hospital on 18/06/09 and discharged on 23/09/06. He had cervical cord injury. It is seen from the certificate issued from Sri Chitra Tirunal Institute of Medical Sciences and Technology, Thiruvananthapuram that the said Mohanan (petitioner), has undergone treatment for cervical cord injury in that institute also. Learned counsel requested six months' time for payment of compensation. Having regard to the circumstances placed before me I am inclined to allow that request. Resultantly, this revision fails. It is dismissed. Petitioner is granted six months' time from today to deposit the compensation in the trial court as ordered by the appellate court. In default of payment he shall undergo imprisonment as ordered by appellate court. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid the 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 amount within the aforesaid period. Crl.R.P.No.1916/09 5 Petitioner shall appear in the trial court on 23/12/09 to receive sentence. THOMAS P JOSEPH, JUDGE Sbna/