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. 2672 of 2009() ------------------------------ CRA.89/2008 of SESSIONS COURT, KOTTAYAM ST.130/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- P.T.PAUL, PRAKASH ROAD LINES LTD., T.D.ROAD, ERNAKULAM. BY ADV. SRI.C.P.RAVIKUMAR RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. K.V.SEBASTIAN, PAVANOOR VEEDU, PALLICKACHIRA P.O., PAIPAD. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R1 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.2672 of 2009 -------------------------------------- Dated this the 19th day of August, 2009. ORDER Public Prosecutor takes notice for respondent No.1. 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. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in Crl.Appeal No.89 of 2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner borrowed Rs.1,53,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 25.4.2005. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.2 gave evidence as PW1 and stated to his case. According to the petitioner, he had not borrowed any amount from respondent No.2, instead, signed blank cheque was given as security. Petitioner examined DW1, manager in charge of M/s.Prakash Road Lines, a sister concern of M/s. Caravan Road Lines in which respondent No.2 was working at the relevant time. Petitioner was working in M/s.Prakash Road Lines. Evidence of DW1 would show that there was a practice of discounting lorry rental deed and obtaining money from respondent No.2. For that purpose Crl.R.P.No.2672/2009 2 petitioner gave two signed blank cheques. Exts.D1 to D6 are produced to prove the alleged transaction between M/s.Praksh Road Lines and M/s. Caravan Road Lines. Respondent No.2 did not admit any such transaction as stated by DW1. He however admitted that on 8.11.2005 petitioner paid Rs.20,000/- in partial discharge of the liability. Courts below found that petitioner issued cheque for the discharge of a legally enforceable debt/liability. 3. When this revision petition came up for hearing learned counsel for petitioner submitted that petitioner may be granted six months’ time to deposit the fine awarded by the learned magistrate. According to the learned counsel petitioner, on account of financial difficulties is unable to raise the amount immediately. He also requested for modification of the substantive sentence. 4. On going through the judgments under challenge, I find no reason to interfere with the concurrent finding entered by the courts below regarding due execution of the cheque. It is also relevant to note that petitioner has not replied to the statutory notice served on him. Hence there is no reason to interfere with conviction of petitioner. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and payment of fine of Rs.1,33,000/-. A default sentence of imprisonment for one month was also provided. It was directed that fine if realized will be given to respondent No.2 as compensation. Appellate court did not interfere with the sentence. Having regard to the nature of offence and the object of legislation I am satisfied that simple imprisonment till rising of Crl.R.P.No.2672/2009 3 the court is sufficient in the ends of justice. There is no reason to interfere with the sentence of fine at the instance of petitioner. Since substantive sentence is modified as above, 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 18.1.2010 to deposit fine. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted time till 18.1.2010 to deposit fine in the trial court. In case of default, petitioner has to undergo simple imprisonment for three months. iii. Fine if realized shall be given to respondent No.2 as compensation. Petitioner shall appear in the trial court on 20.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks