IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 2136 of 2009() ------------------------------ CRA.594/2008 of SESSIONS COURT, KOTTAYAM ST.554/2005 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- N.N.CHANDRASEKHARAN NAIR, NOORACHERIL HOUSE, VALLICHIRA VILLAGE & POST, PALA, KOTTAYAM. BY ADV. SRI.C.K.MOHANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. GEORGE JOSEPH, S/O.JOSEPH, NARIMATTOM HOUSE, MEVIDA KARA & POST, MEENACHIL VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2136 of 2009 -------------------------------------- Dated this the 6th day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of concurrent finding entered by the courts below regarding due execution of a cheque. Petitioner faced trial in the court of learned Judicial Magistrate of First Class, Pala in S.T.No.554 of 2005 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 preferred a private complaint against petitioner alleging that petitioner issued Ext.P1, cheque dated 18.8.2004 for Rs.80,000/- in repayment of the amount he had borrowed from him. That cheque was presented for encashment but it was returned as there was no sufficient funds in the account of petitioner. Respondent No.1 issued notice to the petitioner on 2.9.2004 intimating dishonour and demanding payment of amount. Notice was served on petitioner and he sent the reply, according to respondent No.1, taking up false contentions. Cause of dishonour and issue and service of notice are proved by Exts.P2 to P5. Ext.D1 is said to be the copy of the reply. Respondent No.1 gave evidence as PW1 regarding the transaction and claimed that petitioner borrowed the amount and issued the Crl.R.P.No.2136/2009 2 cheque in repayment of that amount. According to the petitioner, he borrowed Rs.10,000/- from one Prakashan, owner of SNT bus and gave the cheque as security. He paid interest to said Prakashan at the rate of Rs.3,000/- per month for about four months. Later Prakashan handed over the cheque to one Kuttiyachan to whom also petitioner paid interest at the same rate for about four months. Kuttiyachan handed over the cheque to somebody else and respondent No.1 stealthily got it and has misused it. It is contended by learned counsel that finding of the courts below regarding execution of the cheque is not correct. 3. Respondent No.1 has given evidence regarding the transaction leading to the execution of the cheque. It is true that petitioner has a different version regarding the transaction and how the cheque happened to be in the custody of respondent No.1. It is also true that he sent a reply to respondent No.1 in answer to the statutory notice served on him. But, his contention that he handed over the cheque to Prakashan as security for the sum of Rs.10,000/- borrowed from him and that he had been paying interest to Prakashan and Kuttiyachan are not proved or probabilised. Respondent No.1 has denied the suggestions put to him. He asserted that petitioner borrowed the amount from him and issued the cheque. Petitioner has not adduced any evidence nor brought out any circumstances to prove or even probabilise his contentions. In these circumstances there is no reason to interfere with the concurrent finding entered by the courts below regarding the execution of the cheque. Hence his conviction required no interference. Crl.R.P.No.2136/2009 3 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay fine of Rs.85,000/-. Default sentence of one month was also provided. It was directed that out of the fine if realized Rs.80,000/- will be paid to respondent No.1 as compensation. In appeal sentence of fine and default sentence were confirmed. Petitioner was granted two months’ time to deposit the fine. Substantive sentence was modified as simple imprisonment till rising of the court. Having regard to the nature of the offence and the amount involved there is little reason to interfere with the sentence as modified by the appellate 5. Learned counsel for petitioner requested four months’ time to deposit fine in the trial court. Having regard to the difficulties expressed by the petitioner and the amount involved I am inclined to allow that request. Resultantly this revision fails. It is dismissed. Petitioner is granted four months’ time from today to deposit fine in the trial court and in default of payment, he shall undergo imprisonment as ordered by the appellate court. Petitioner shall appear in the trial court on 7.11.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks