IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.REV.PET.NO. 605 OF 2009() ------------------------------------------ CRA.830/2007 OF SESSIONS COURT, TRIVANDRUM CC.82/2005 OF JUDICIAL FIRST CLASS MAGISTRATE-IV NEYYATTINKARA .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ---------------------------------------------------------------- P.CHANDRA BABU, S/O.PAPPU, PIPPINAMOODU PARAMBIL VEEDU, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------- 1. UNNI, S/O.APPU, VAZHAVILAKATHU VEEDU, IRUMBIL DESOM, NEYYATTINKARA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.605 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 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 respondent No.1. 2. Judgment of learned Sessions Judge, Thiruvananthapuram in Crl.Appeal No.830 of 2007 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the substantive sentence is under challenge in this revision. 3. Case is that to discharge liability to the tune of Rs.75,000/- petitioner issued Ext.P1, cheque dated 7.4.2002 which on presentation for encashment was returned on 10.7.2002 for insufficiency of funds. Respondent No.1 gave notice of dishonour and demanded payment of the amount. Though notice was served on the petitioner, he did not respond, either by way of a reply or by compliance. Hence the complaint. Respondent No.1 gave evidence as P.W.1 and proved Exts.P1 to P7. Dishonour of the cheque for above said reason is proved by Exts.P2 and P3. Issue and service of notice are proved by Exts.P4 to P6. Obviously to prove that respondent No.1 CRL. R.P. No.605 of 2009 -: 2 :- had sufficient funds to advance the sum of Rs.75,000/- to the petitioner, the former produced Ext.P7, certified copy of a sale deed executed by his father. According to the petitioner, he had no transaction with respondent No.1. He examined D.Ws.1 to 4 to show that respondent No.1 had no sufficient funds with him to advance Rs.75,000/-. Exhibit D1 was marked on the side of the petitioner. Courts below found, accepting the case of respondent No.1 that petitioner issued the cheque for the discharge of the legally enforceable debt/liability and convicted the petitioner for the offence as aforesaid. It is contended by the learned counsel that due execution of the cheque is not proved and that at any rate the presumption under Sec.139 of the Act is rebutted. It is also contended that notice issued is not valid and hence conviction is vitiated. 4. As to the due execution of cheque, respondent No.1 has given evidence as P.W.1. He claimed that petitioner borrowed Rs.75,000/- from him and issued the cheque. It is admitted by the petitioner also that Ext.P1 contained his signature and that it is drawn on the account maintained by him. Respondent No.1, when examined as P.W.1 stated that the sum of Rs.75,000/- was taken from the proceeds of the sale of the property belonging to his parents, as per Ext.P7. In Ext.P7, the sale deed executed by D.W.1 (father of CRL. R.P. No.605 of 2009 -: 3 :- respondent No.1), the sale consideration stated is Rs.54,000/-. It is stated in Ext.P7 and it is practically admitted by D.W.1 also that the sale was with intend to purchase another item of land with the sale consideration received and accordingly D.W.1 purchased another property for Rs.50,000/-. But respondent No.1 asserted, D.W.1 claimed and D.W.2, the purchaser under Ext.P7 admitted that sale consideration was Rs.1,53,000/- though it was stated in Ext.P7 as only Rs.54,000/- for some other purposes. D.Ws.3 and 4 are the document writer and scribe of Ext.P7. They do not know whether the sale was for any amount higher than what is mentioned in Ext.P7. 5. According to D.W.1, out of the sale consideration of Rs.1,53,000/- he received by sale of his property as per Ext.P7, he paid Rs.75,000/- to his son (respondent No.1). May be Ext.P7 is only for Rs.54,000/- and going by the version of D.Ws.1 and 2 they may have to suffer proceedings under the Stamp Act for not mentioning in Ext.P7 the actual sale consideration. But that is not sufficient to disbelieve D.Ws.1 and 2. They are the witnesses examined by and for the petitioner. Nothing is brought out by the petitioner to disbelieve his own witnesses. It is a fact that Registration Authorities book so many cases under the relevant provisions of the Stamp Act for not mentioning the real consideration in the documents. It is thus in the CRL. R.P. No.605 of 2009 -: 4 :- evidence which was brought through D.Ws.1 and 2 that notwithstanding the consideration stated in Ext.P7, the sale was for Rs.1,53,000/-. There is no reason why D.Ws.1 and 2 should be disbelieved. I also bear in mind that petitioner has no proper explanation how the signed blank cheque leaf happened to be in the custody of respondent No.1 and why in spite of getting a notice which contained a demand for payment of the amount covered by the cheque he did not reply. In these circumstances I do not find reason to interfere with the finding of the courts below which rested on a proper appreciation of the evidence on record, that petitioner issued the cheque in question in favour of respondent No.1 for the discharge of a legally enforceable debt/liability. 6. It is next contended by learned counsel that at any rate, presumption under Sec.139 of the Act is only as to the consideration and not as to the legality of recoverability of the debt or liability. Assuming so, there is the evidence of P.W.1 as to the transaction which the courts below found in his favour and which I find, there is no reason to interfere. Petitioner has not rebutted the presumption under Sec.139 of the Act. 7. Next contention is that notice issued (Ext.P4 is the copy and Ext.D1 is the original) is not valid in so far as the demand is for CRL. R.P. No.605 of 2009 -: 5 :- payment of for Rs.50,000/- and that too, within a period of ten (10) days. I have gone through the copy of notice made available by the counsel. Notice starts with case of respondent No.1 that petitioner issued the cheque in question for Rs.75,000/- and further says that the said cheque was dishonoured. Towards the end of the notice it is stated that petitioner has to pay the “said amount of Rs.50,000/-” due to respondent No.1 within ten days. The amount demanded is Rs.50,000/- but use of the words 'said amount' indicates that reference is to Ext.P1, cheque which is stated in the notice as issued for Rs.75,000/-. It leaves me in no doubt that the statement in the notice regarding the amount as Rs.50,000/- is only an inadvertent mistake by which petitioner could not have been mislead. 8. So far as the period stated in the notice for repayment is concerned, it is conceded that it was after the grace period provided for payment of the amount after service of the notice that respondent No.1 initiated legal proceedings. Hence notice cannot be said to be invalid or to have prejudiced the petitioner. 9. On going through the judgments under challenge I find no illegality, irregularity or impropriety in the courts below entering conviction on the petitioner. Sentence as modified by the learned Sessions Judge is in accordance with the provision of law and taking CRL. R.P. No.605 of 2009 -: 6 :- into account the object of legislation. There is little reason to interfere with that as well. 10. At this stage counsel for petitioner requested four months' time to deposit the fine. Having regard to the amount involved and circumstances stated by learned counsel I am inclined to grant two months' time to the petitioner to deposit the fine as ordered by the learned Sessions Judge. Resultantly, revision fails. It is dismissed. Petitioner is granted two months' time from this day to deposit the fine in the trial court. Petitioner shall appear in the trial court on 28.7.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv