IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.Rev.Pet.No. 2780 of 2009() ------------------------------ CRA.271/2007 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE CC.638/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.NARAYANAN,S/O.T.KANNAN,RESIDING AT PALLATHUNGAL HOUSE,KUTTIKOL POST AND VILLAGE, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.C.K.PRASAD RESPONDENT(S): COMPLAINANT -------------------------- 1. K.P.PADMANABHAN,S/O.K.VALLAN,RESIDING AT MANI NIVAS,NEAR SIVA TEMPLE,PELICODE,HOSDURG TALUK KASARAGODE. 2. STATE OF KERALA,REPRESENTED BY THE P.PROSECUTOR,HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 2780 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009 O R D E R Petitioner faced trial in the court of learned Judicial First Class Magistrate I, Hosdurg in C.C. No.638/2005 for offence punishable under section 138 of the Negotiable Instruments Act(for short “the Act”) on a complaint preferred by respondent no.1. He alleged that the petitioner borrowed Rs.4,00,000/- from him undertaking to repay the same within 15 months and on demanding repayment, petitioner issued 2 cheques for Rs.3,00,000/- and Rs.1,00,000/- respectively. The cheque dated 13.11.2004 for Rs.3,00,000/- was dishonoured for insufficiency of fund as proved by Exts.P3 and P4. Respondent no. 1 gave evidence as PW1. Case of the petitioner is that he was conducting Malabar Construction Company and as a promoter respondent no.1 deposited Rs.2,00,000/- with that company. At that time he gave two signed blank cheques as security. Those signed blank cheques leaves are misused. Petitioner did not adduce any Crl.R.P. No. 2780 OF 2009 : 2 : evidence or produce, circumstances to prove or probablise that contention. Courts below found against him. That concurrent finding is under challenge in this revision. 2. It is not disputed that Ext.P1, the cheque is signed by petitioner. It is also not disputed that that it is drawn on the account maintained by him. There is no evidence to show that respondent no.1 had invested any amount in the company allegedly belonging to the petitioner. It has come in evidence that Respondent no.1 was working as engineer of the Water Authority during the relevant time. There is no dispute regarding his capacity to raise the sum of Rs.4,00,000/-. Petitioner inspite of being served with statutory notice has not replied to it. There is also nothing on record to show that evidence of the respondent no.1 regarding the transaction and execution of the cheque is not believable. In the circumstances courts below are justified in finding in favour of due execution of the cheque. Petitioner has failed to rebut the presumption under Section 139 of the Act. Therefore there is no reason to interfere with the contention of petitioner. Crl.R.P. No. 2780 OF 2009 : 3 : 3. It is contented by learned counsel sentence imposed is excessive. Learned counsel requested that since the petitioner is facing financial difficulties, he may be granted six months time to deposit the compensation. Further request is that petitioner may be permitted to pay compensation directly to respondent no.1. Considering the nature of offence and the objection of legislation I am satisfied that simple imprisonment till raising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation or the default sentence at the instance of petitioner. Considering the circumstances stated by learned counsel I am inclined to grant time to the petitioner till 6.1.2010 to deposit compensation. 4. I have dispensed with notice to respondent No.1 in this proceeding in view of the order I proposed to pass which is not prejudiced to him. Resultantly, this revision petition 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. Crl.R.P. No. 2780 OF 2009 : 4 : 2. Petitioner is granted time till 6.1.2010 to deposit compensation as ordered by the courts below. 3. It is directed that it will be sufficient compliance with the direction for deposit of compensation if petitioner paid compensation to respondent No. 2 through his counsel in the trial court and respondent filed a statement in that court through his counsel acknowledging receipt of compensation within the aforesaid time. 4. Petitioner shall appear in trial court on 8.1.2010 to receive the sentence 5. Until then, execution of warrant if any, against the petitioner will stand in abeyance. ( THOMAS P JOSEPH, JUDGE) jma