IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 Crl.Rev.Pet.No. 1587 of 2009() ------------------------------------- JUDGMENT DATED 8.9.2008IN CRA.642/2003 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY ST.51/2002 of CHIEF JUDITIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ A.VISWANATHAN, S/O.KELAN, AGED 50 YEARS, ARINGOTH HOUSE, ECHUR P.O., KANNUR DIST. BY ADV. MR.C.K.SREEJITH RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------------------------- 1. C.K.SREEDHARAN, S/O.ACHUTHAN, ANNAPOORNA, KUDUKKIMOTTA, ECHUR P.O., KANNUR DIST. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. RAVINDRA BABAU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1587 OF 2009 ---------------------------------------- Dated this the 12th day of June, 2009 ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. 2. This revision at the instance of the accused is in challenge of the concurrent findings entered against him by the courts below as to the due execution of the cheque for discharge of a legally enforceable debt/ liability, its dishonour for insufficiency of funds and failure to pay the amount in spite of dishonour intimation and demand. According to respondent No.1, petitioner borrowed Rs.32,000/- from him on 8.5.2002 undertaking to re-pay the same within three months and for the discharge of that liability issued Ext.P1, cheque dated 8.8.2002. He presented that cheque for encashment but it was dishonoured on 9.8.2002 for insufficiency of funds as proved by Exts.P2 and P3. On getting dishonour intimation, he issued notice to the petitioner on 13.8.2002. That notice was served on the Crl.R.P.No.1587/09 2 petitioner on 24.8.2002. Issue and service of notice are not in dispute and are proved by Exts.P4 to P6. Ext.P7 is the reply sent by the petitioner. Respondent No.1 gave evidence as PW1 and testified to the transaction and execution of the cheque. When questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”), petitioner claimed that he had borrowed only Rs.12,000/- from respondent No.1 and that a signed blank cheque was given as security. He paid that amount but respondent No.1 did not return the cheque. Petitioner examined his nephew as DW1 who claimed to have witnessed the transaction pleaded by petitioner. Courts below were not inclined to accept the explanation of petitioner, found that due execution of cheque is proved and convicted him under Section 138 of the Negotiable Instruments Act (for short, “the Act”). It is contended by learned counsel for petitioner that conviction of the petitioner is not legal or proper. Learned counsel pointed out that even as per the evidence of respondent No.1., he obtained cheque from the petitioner without any date at the time of borrowal. Learned magistrate observed that as respondent No.1 had other transaction also with the petitioner, his reference to Crl.R.P.No.1587/09 3 obtaining the cheque without date may be in relation of those transactions. According to learned counsel, that finding is not justified. 3. Assuming that respondent No.1 had obtained Ext.P1, cheque without date, that did not in any way affect his case. For, this is not a case where petitioner disputes any transaction with respondent No.1 or, the fact of handing over the cheque in question to the latter. It is admitted by petitioner that he had borrowed certain amount from respondent No.1 (though according to him, it was only Rs.12,000/-) and that he gave the cheque in question to respondent No.1. If that be the situation, respondent No.1 is entitled to present the cheque on the day the amount became due to him. According to respondent No.1, petitioner borrowed Rs.32,000/- from him on 8.5.2002 and undertook to re-pay the same within three months. Ext.P1 is dated 8.8.2002. In the absence of the evidence the cheque must be deemed to have been drawn on the date the instrument bears. In the circumstances, respondent No.1 was justified even if his statement related to Ext.P1, in presenting the cheque on the day the amount became payable to him, ie. on 8.8.2002 by Crl.R.P.No.1587/09 4 putting that date in the cheque. 4. So far as evidence of DW1 is concerned, he is none other than the nephew of the petitioner. Mere fact that the petitioner sent reply like Ext.P7 or, examined his close relative as a witness on his side is not sufficient to disbelieve the evidence given by respondent No.1. Due execution of the cheque is proved by the evidence of respondent No.1. Nothing is brought out to disbelieve him. Courts below on the evidence are justified in accepting the evidence of respondent No.1 regarding execution of the cheque. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Hence conviction of the petitioner required no interference. 5. Learned magistrate sentenced petitioner to undergo Simple Imprisonment for two months, payment of fine of Rs.35,000/- and in default to undergo Simple Imprisonment for one month. It was directed that out of the fine if realised, Rs.33,000/- will be paid to respondent No.1 as compensation. Appellate court did not interfere with the sentence. Learned counsel submitted that substantive sentence awarded is excessive and requested two months' time to deposit fine in Crl.R.P.No.1587/09 5 the trial court. Having regard to the nature of offence and the amount involved, I am satisfied that Simple Imprisonment till rising of the court and compensation of Rs.33,000/- is sufficient in the ends of justice. In case of default to pay compensation petitioner shall undergo imprisonment for two months. Resultantly, this revision is allowed in part to the following extent. i) Substantive sentence imposed on the petitioner is modified as Simple Imprisonment till rising of the court. ii) Sentence for payment of fine is set aside. Petitioner is directed to deposit in the trial court for payment to respondent No.1 as compensation of Rs.33,000/- (Rupees thirty three thousand only) within two months from this day failing which he shall undergo Simple Imprisonment for two months. iii) Petitioner shall appear in the trial court on 14.8.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1587/09 6