IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.REV.PET.NO. 2573 OF 2009() ------------------------------------------ CRA.166/2006 OF II ADDL.SESSIONS COURT, ERNAKULAM CC.1807/2001 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------- D.SASIDHARAN, S/O.DAMODARAN, VYSAKTHI, KOWANAL LANE, EROOR SOUTH P.O. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.SUJA MATHEW RESPONDENT(S): STATE AND COMPLAINANT -------------------------------------------------------------- 1. RANJINI RAMASWAMI, PROPRIETOR, SREE POORNATHRAEESA CHITTY FUNDS, MAIN ROAD, TRIPPUNITHURA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR BY SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ALONG WITH CRL. R.P. NO.2575 OF 2009 ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2573 of 2009 AND CRL. R.P. NO.2675 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of August, 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 these revisions which is not prejudicial to her. Public Prosecutor takes notice for respondent No.2. 2. These revisions are in challenge of separate judgments passed by learned Second Additional Sessions Judge, Ernakulam in Crl. Appeal Nos.166 and 165 of 2006, respectively arising from the common judgment in C.C. Nos.1807 and 1808 of 2001. Respondent No.1 preferred complaint against petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case is that petitioner joined in two Kuries conducted by respondent No.1, prized it and received the amount undertaking to pay the amount due to respondent No.1 in installments. He failed to pay the installments. In C.C. No.1807 of 2001 petitioner issued Ext.P1, cheque dated 12.3.2001 for Rs.50,000/- for discharge of the liability referred to in that case. In C.C. No.1808 of 2001 petitioner issued Ext.P2, cheque dated 19.6.2001 for Rs.46,900/- for discharge of the CRL. R.P. Nos.2573 & 2575 of 2009 -: 2 :- liability mentioned therein. Those cheques were dishonoured for insufficiency of funds as proved by Exts.P2 to P4. Respondent No.1 issued notice in both the cases intimating dishonour and demanding payment. Issue and service of notice in C.C. No.1807 of 2001 is proved by Exts.P5 and P6. In C.C.No.1808 of 2001 notice was returned unclaimed which is proved by Ext.P8. Respondent No.1 gave evidence as P.W.1 and testified to the transactions leading to the execution of the cheques. Petitioner claimed that he subscribed to the Kuries run by the husband of respondent No.1 and gave signed blank cheques as security. He denied that he is not liable to pay any amount as stated in Exts.P1 and P2. Courts below found in favour of due execution of the cheques for the discharge of legally enforceable debt/liability. That finding is challenged in these revisions. 3. It is not disputed by petitioner also that he subscribed to the Kuries as claimed by respondent No.1 but his only contention is that it was being run by the husband of respondent No.1. Further contention is that signed blank cheques were given at the time of joining the Kuries. That the Kuries are run by respondent No.1 is proved by Exts.P9 and P9(a), Kuri agreements executed by petitioner. Though petitioner claimed that he has no liability to pay the amount his plea of discharge is neither proved nor probabilised. No CRL. R.P. Nos.2573 & 2575 of 2009 -: 3 :- document was produced to show that he has discharged the liability. Suggestions put to respondent No.1 in that line have been denied by her. It is admitted that Exts.P1 and P2 are cheques signed by petitioner and drawn on the account maintained by him. Due execution of the cheques is proved by respondent No.1. Petitioner failed to rebut the presumption under Sec.139 of the Act. Hence the finding entered by the courts below does not require interference in these revisions. 4. In C.C. No.1807 of 2001 petitioner was sentenced to undergo simple imprisonment for six months and payment of fine of Rs.75,000/- and in default of payment to undergo simple imprisonment for three months. It was directed that out of fine if realised Rs.70,000/- will be given to respondent No.1 as compensation. Appellate court while retaining the fine and default sentence modified the substantive sentence as simple imprisonment till rising of the court. In C.C. No.1808 of 2001 petitioner was sentenced to undergo simple imprisonment for six months and payment of fine of Rs.70,000/- and in default of payment to undergo simple imprisonment for three months. It was directed that out of fine if realised Rs.65,000/- will be given to respondent No.1 as compensation. In that case while retaining the fine and default sentence appellate CRL. R.P. Nos.2573 & 2575 of 2009 -: 4 :- court modified the substantive sentence as simple imprisonment till rising of the court. Having regard to the nature of offence and amount involved I find no reason to interfere with the substantive sentence as modified and fine and default sentence as confirmed by the appellate court, at the instance of petitioner. 5. Learned counsel requested five months’ time to deposit the fine. According to the learned counsel, petitioner lost his business and is unable to raise the amount immediately. Considering the circumstances stated by learned counsel and the amount payable as fine I am inclined to grant time till 08.01.2010 to deposit the fine as ordered by the appellate court. Resultantly these revision petitions fail and are dismissed. Petitioner is granted time till 08.01.2010 in both the cases to deposit the fine in the trial court. Petitioner shall appear in the trial court on 09.01.2010 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv