IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Crl.Rev.Pet.No. 2682 of 2009() ------------------------------ CRA.205/2004 of ADDL. SESSIONS COURT (ADHOC), KOLLAM CC.285/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------- P.K GOPALAKRISHNAN,S/O.KUMARAN,M.C.NO.555, KALARI PURAYIDOM,KATCHERI WARD,KOLLAM DISTRICT. BY ADV. SRI.JOHNSON GOMEZ RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT: ----------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. 2. M.BHASKARAN,BHASKARA MANDIRAM, KOTTAKKAKAM WARD, KOLLAM DISTRICT. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2682 of 2009 --------------------------------------- Dated this 19th day of August 2009 ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.1. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, (Adhoc-1), Kollam in criminal appeal No.205 of 2004 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act in C.C.No.285 of 2000 of the court of learned Chief Judicial Magistrate, Kollam. According to respondent No.2, petitioner borrowed Rs.85000/- from him and for repayment of that amount issued cheque dated 18-03-1999 the certified copy of which is Ext.P1. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2, P3 and P7. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Ext.D1 is the reply sent by petitioner. According to the petitioner, a signed blank cheque was stolen from his possession by son of respondent No.2 who was assisting him in his business. Courts below did not accept that explanation of petitioner and found him guilty. Conviction and sentence are under challenge in this revision. 3. It is not disputed that Ext.P1 did not contain the signature Crl.R.P.No.2682 of 2009 2 of petitioner and is drawn on the account maintained by him. It is true that he denied that he had any transaction with respondent No.2 and according to him, the signed blank cheque leaf was stolen by the son of respondent No.2. It is also true that reply in that line was given to respondent No.2 but there is no evidence or circumstance to prove or probabilise that contention of petitioner. Respondent No.2 asserted that petitioner borrowed Rs.85000/- from him and issued the cheque. Courts below after consideration of the evidence found in favour of due execution of the cheque. Petitioner is failed to rebut the presumption under section 139 of the Act. I find no reason to interfere with the conviction of petitioner. 4. Learned Chief Judicial Magistrate sentenced petitioner to undergo simple imprisonment for six months and to pay fine of Rs.90000/- with a default sentence of simple imprisonment for two months. It was directed the out of the fine if realised Rs.85000/- will be given to respondent No.2 as compensation. Appellate court has refused to interfere with the sentence. It is contended by learned counsel that sentence awarded to the petitioner is excessive. He requested that petitioner may be granted four months' time to deposit the fine. It is stated that business of petitioner has failed and that he is in a difficult financial situation. Having regard to the nature of offence I am satisfied that simple imprisonment till rising of the court is Crl.R.P.No.2682 of 2009 3 sufficient in the ends of justice. There is no reason to interfere with the sentence of fine or direction for payment of compensation to respondent No.2 out of the fine if realised, at the instance of petitioner. However, since substantive sentence is being modified as simple imprisonment till rising of the court I direct that in case of non payment of fine petitioner has to undergo simple imprisonment for three months. Considering the circumstances stated by learned counsel petitioner is granted time till 17-12-2009 to deposit fine in the trial court. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 17-12-2009 to deposit the fine in the trial court as ordered by that court. In case of default petitioner has to undergo simple imprisonment for three months. 3. Direction for payment of compensation out of the fine if realised will remain in force. Petitioner shall appear in the trial court on 17-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 17-12-2009. THOMAS P JOSEPH, JUDGE Sbna/