IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.Rev.Pet.No. 1804 of 2009() ------------------------------ CRA.52/2007 of SESSIONS COURT, TRIVANDRUM ST.737/1999 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------------------------- MOHANDAS, S/O.PONNAN, PUTHANAMKUZHY, KIZHAKKUMKARA, ARASUMOODU, KULATHOOR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.V.ANIL SRI.K.PRADEEP KUMAR RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. PRASANNA KUMAR, UTHRADAM, MUTTACAUD P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1804 of 2009 -------------------------------------- Dated this the 9th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Concurrent finding entered by the courts below as to due execution of cheque for the discharge of a legally enforceable debt/liability is sought to be unsettled by this revision at the instance of the accused. Respondent No.1 alleged that petitioner borrowed Rs.50,000/- from him on 3.4.1999 and issued cheque (Ext.P1) dated 3.5.1999 for the discharge of that liability. That cheque was dishonoured on 19.5.1999 for insufficiency of funds as proved by Exts.P3 and P4. On getting dishonour intimation respondent No.1 issued notice on 2.6.1999 to the petitioner intimating the dishonour and demanding payment. Notice was served on petitioner on 3.6.1999. Issue and service of notice are not disputed and are proved by Exts.P54 to P7. Findings of the courts below as to the cause of dishonour and service of statutory notice are not challenged before me. 3. Respondent No.1 gave evidence as PW1 and claimed that petitioner borrowed Rs.50,000/- from him in the presence of PW2. At the time of transaction, petitioner issued the cheque (Ext.P1) and a receipt (Ext.P2) Crl.R.P.No.1804/2009 2 acknowledging receipt of the amount. PW2 has given evidence supporting PW1. As against that, case pleaded by the petitioner is that he had no transaction with respondent No.1. Instead, he had borrowed Rs.50,000/- from one Ajith @ Unni and given signed blank cheque to said Ajith. He had discharged the liability of the said Ajith but the cheque was not returned. It is contended that due execution of cheque is not proved. 4. Respondent No.1 has given evidence regarding the transaction. He has also examined PW2 who is a witness in Ext.P2, receipt. It is not disputed that Exts.P1 and P2 contained the signature of petitioner. It is also not disputed that Ext.P1 was drawn on the account maintained by petitioner. According to the petitioner, he handed over the cheque to his friend, Ajith in connection with another transaction. But, apart from merely pleading or suggesting so, no attempt is made to prove or probabilise that contention. Petitioner did also not reply to the notice served on him. If actually no amount was due to respondent No.1 from him, petitioner would have replied to the notice served on him. There is no proper and acceptable explanation for not replying to the notice. It is not shown that the evidence of PWs 1 and 2 is not reliable. In the above facts and circumstances and relying on the evidence of Crl.R.P.No.1804/2009 3 PWs 1 and 2 and Exts.P1 and P2 courts below found in favour of due execution of cheque. There is no reason to interfere with the concurrent finding entered by the courts below as to the due execution of the cheque and the failure of the petitioner to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner is legal and proper and required no interference. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay fine of Rs.55,000/-. In default of payment of fine, petitioner was directed to undergo simple imprisonment for two months. Appellate court modified the substantive sentence to imprisonment till rising of the court while retaining the sentence of fine with the default sentence. I do not find reason to interfere with the sentence as modified by the appellate court. 6. Learned counsel requested three months' time to deposit fine in the trial court. Having regard to the amount involved and circumstances stated by learned counsel, petitioner is granted two months' time to deposit fine in the trial court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted two months' time from today to deposit fine in the trial court. Petitioner Crl.R.P.No.1804/2009 4 shall appear in the trial court on 11.8.2009 to receive the sentence. Crl.M.A.No.5289 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks