IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.Rev.Pet.No. 1738 of 2009() ------------------------------ CRA.228/2007 of ADDL.SESSIONS JUDGE (ADHOC-II) MANJERI CC.653/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.SREEDEVI, D/O.SREEDHARAN NAIR, KOTHANDATH HOUSE, P.O.MARAKKARA, KADAMPUZHA, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): /RSPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. JALAJA. W/O.SANKARANARAYANAN, USHA NIVAS, PALATHOLE DESOM, ELAMKULAM AMSOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1738 of 2009 -------------------------------------- Dated this the 4th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to her. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge(Adhoc), Fast Track-II, Manjeri in Crl.Appeal No.228 of 2007 confirming conviction and sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 3. Respondent No.1 claimed that petitioner borrowed Rs.60,000/- from her on 1.12.2003 undertaking to repay the same within three months and issued Ext.P1, cheque. That cheque was dishonoured for insufficiency of funds which is proved by Exts.P2 and P3. Petitioner was intimated about the dishonour and he was called upon to make the payment. Issue and service of notice are proved by Ext.P4 and P5. Findings entered by the courts below as regards the cause of dishonour and issue and service of notice are not challenged in this revision. 4. When questioned under Section 313 of the Code of Criminal Procedure(for short, “the Code”), petitioner claimed that a signed blank cheque was given to respondent No.1. Respondent No.1 has given evidence as PW1 Crl.R.P.No.1738/2009 2 about the borrowel and execution of the cheque. Nothing was brought out to disbelieve the evidence of respondent No.1. Petitioner did not reply to the notice served on him. It is admitted that Ext.P1, the cheque is signed by the petitioner and is drawn on the account maintained by the petitioner. Petitioner has not proved or probabilised how else the cheque happened to be in the custody of respondent No.1. In these circumstances, concurrent findings entered by the courts below that petitioner issued the cheque for the discharge of a legally enforceable debt/liability and failed to rebut the presumption under Section 139 of the Act required no interference. 5. It is submitted by learned counsel that the sentence may be modified as fine, avoiding the simple imprisonment till rising of the court. Under the proviso to Section 143(1) of the Code the court is entitled to impose fine exceeding Rs.5,000/- and upto double the amount covered by the cheque. On the facts and circumstances of the case I am inclined to think that fine of Rs.67,000/- is sufficient in the ends of justice. Sentence is modified accordingly. Learned counsel requested four months' time to deposit the fine in the trial court. Considering the nature of offence committed and the object of legislation, I am inclined to grant three months' time to the petitioner to deposit fine in the trial court. Resultantly, this revision petition is allowed in part to the following extent: i. Instead of the substantive sentence awarded to the petitioner and direction for payment of compensation, petitioner is sentenced to pay fine of Rs.67,000/- (Rupees Sixtyseven only) and in default of payment to undergo Crl.R.P.No.1738/2009 3 simple imprisonment for three months. ii. Out of the fine if realized, Rs.65,000/- (Rupees Sixtyfive thousand) will be given to respondent No.1 as compensation under Section 357(1) of the Code. iii. Petitioner is granted three months time to deposit the fine in the trial court. Crl.M.A.No.5305 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks