IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 Crl.Rev.Pet.No. 921 of 2004 (A) ----------------------------------------------- CRA.174/2003 of ADDL.SESSIONS COURT, KOTTAYAM CC.28/2000 of JUDL. MAGISTRATE OF FIRST CLASS - II, (MOBILE), KOTTAYAM, CHENGANACHERRY .................... REVN. PETITIONER / APPELLANT / ACCUSED: ------------------------------------------------------------------------ SIBY VARGHESE, S/O. T.V.JOSEPH, THAYYIL HOUSE, THATHAMPALLY P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS / RESPONDENTS / COMPLAINANT & STATE: ---------------------------------------------------------------------------------------------- 1. VARGHESE K.C., KAPPIL HOUSE, MADAPPALLY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.A.P.SUBHASH FOR R1 SRI.SEBASTIAN THOMAS PALAKUNNEL(NO MEMO) PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.921 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act. The trial court found him guilty and convicted and sentenced him to undergo simple imprisonment for six months and to pay a compensation of Rs.1,50,000/- to the complainant under Section 357(3) of the Code of Criminal Procedure and in default of payment of compensation to suffer simple imprisonment for three more months. The above order of conviction and sentence was confirmed in appeal by the Sessions Court. Hence, this revision petition. 2. The case of the complainant/respondent No.1 herein before the trial court was that petitioner/accused had borrowed a sum of Rs.1.50 lakhs from him and issued Ext.P1 cheque dated September 2, 1999 in discharge of the said liability. When the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in his account. Though statutory demand notice was issued, the liability was not discharged. 3. Complainant was examined as PW1 and Exts.P1 to P8 were marked on his side. DW1 and DW2 were examined on the side of the defence. As mentioned earlier, the trial court found the petitioner guilty after considering the oral and documentary evidence adduced by the complainant. 4. Petitioner/accused did not dispute his signature in Ext.P1 cheque. But according to him, he had not borrowed any money from the complainant. Crl.R.P.No.921 OF 2004 :: 2 :: His case appeared to be that he had borrowed a sum of Rs.40,000/- from his cousin through the intervention of DW1. At that time, he had handed over two blank signed cheques as security for the loan amount. Petitioner contended that the complainant, who is none other than the husband of the cousin referred to above, had misused one of the two blank cheques for the purpose of launching this prosecution against him. Petitioner examined the so called mediator Sri.T.C.Varghese who arranged Rs.40,000/- for him from his cousin. Sri.Varghese, who was examined as DW1, did not support the case of the petitioner. According to this witness, he had never collected any blank signed cheques from the petitioner and handed them over to the cousin of the petitioner. Though petitioner himself was examined as DW2, his evidence also did not turn out to be helpful at all to him. In short, there was absolutely no evidence to show that Ext.P1 was one of the two blank signed cheques allegedly handed over by the petitioner to one of his cousins at the time when he borrowed some money from her. More importantly, the signature in Ext.P1 cheque was never in dispute. Thus the petitioner failed to discharge the burden cast on him under Section 139 of the Act. The trial court as well as the appellate court adverted to all the above aspects at length and came to the conclusion that complainant had satisfactorily proved his case. 5. Having gone through the entire materials available on record and having heard learned counsel for the parties, I do not find any reason to interfere with the concurrent order of conviction and sentence passed by the Crl.R.P.No.921 OF 2004 :: 3 :: courts below. There is no merit in any of the contentions raised by the petitioner. Revision Petition fails and it is accordingly dismissed. 2-7-2010 (A.K.BASHEER, JUDGE) 6. This revision petition is posted before me “to be spoken to” on a request made by learned counsel for the petitioner. 7. Ms.Bhavana, learned counsel for the petitioner, submits that the petitioner is prepared to pay off the cheque amount to the respondent/complainant, if he is given some reasonable time. Learned counsel for respondent points out that the cheque was of the year 1999 and so far the petitioner has managed to delay the matter. 8. However, having regard to the entire facts and circumstances of the case and particularly since the order dictated by me in open court has not been corrected and signed by me, I am of the view that the above prayer made by the learned counsel for the petitioner can be granted. 9. Therefore, while confirming the order of conviction it is ordered that the substantive sentence of imprisonment for six months imposed on the petitioner shall stand set aside on condition that the petitioner appears before the trial court below and remits a sum of Rs.1,75,000/- to be paid to the respondent/complainant towards compensation under Section 357(3) of the Code and also on a further condition that the petitioner suffers imprisonment Crl.R.P.No.921 OF 2004 :: 4 :: till the rising of the court. In default of payment of the above sum of Rs.1,75,000/-, petitioner shall suffer simple imprisonment for six months. Petitioner shall appear before the trial court on August 21, 2010. On his appearance, the learned Magistrate shall ensure that the petitioner undergoes imprisonment till the rising of the court on that day. If the petitioner fails to appear and remit the compensation amount indicated above, this revision petition shall stand dismissed. 20-7-2010 (A.K.BASHEER, JUDGE)