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. 1763 of 2009() ------------------------------ CRA.811/2007 of ADDL.DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE ST.59/2006 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- Y.M.DEVADASAN, AGED 46, S/O.GOPALAN, M.N.KANDIYIL, MAKKADA, MORIKKARA, KOZHIKODE. BY ADV. SRI.SRINATH GIRISH SMT.M.LISHA RESPONDENT(S): RESPONDENTS/COMPLAINANT AND THE STATE ---------------------------------------------------- 1. N.DASAN, AGED 60, S/O.KELU, VELAMBUKOTTIYIL HOUSE, CHEVARAMBALAM, KOZHIKODE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN 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.1763 of 2009 -------------------------------------- Dated this the 9th day of June, 2009. ORDER Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. 2. Petitioner, accused in S.T.No.59 of 2006 of the Court of learned Judicial Magistrate of First Class-IV, Kozhikode challenges his conviction and sentence for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.1, petitioner borrowed Rs.50,000/- from him and for discharge of that liability issued Ext.P1, cheque dated 2.9.2004. That cheque was dishonoured on presentation for insufficiency of funds. On getting intimation about the dishonour respondent No.1 issued statutory notice to the petitioner on 23.9.2004. Notice was served on the petitioner on 30.9.2004. Petitioner neither replied nor repaid the amount. Respondent No.1 gave evidence as PW1 and testified to his case. He proved Exts.P1 to P5. Ext.P1 is the cheque in question. Its dishonour for insufficiency of funds is proved by Exts.P2 and P3. Issue and service of statutory notice on petitioner are proved by Exts.P4 and P5 There is no challenge to the finding of the courts below regarding the cause of dishonour and issue and service of notice. Crl.R.P.No.1763/2009 2 3. According to the petitioner, he had no transaction with respondent No.1, nor had he issued any cheque to him. Instead, he had borrowed some amount from one Padmanabhan and given a signed blank cheque as security. That cheque has been misused. It is contended in this revision that finding of the courts below as to the due execution of cheque is not correct. 4. Though it is contended by petitioner that he had no transaction with respondent No.1 and that he handed over Ext.P1 in signed blank form to Padmanabhan, he did not even attempt to prove or probabilise that contention. The suggestion put to respondent No.1 in that line while he was in the box was denied. Respondent No.1 gave evidence regarding the transaction and due execution of the cheque. It is not disputed that Ext.P1 contained signature of petitioner and it is drawn on the account maintained by him. Petitioner has no evidence to show how else the cheque happened to be in the custody of respondent No.1. It is pertinent to note that petitioner did not reply to the statutory notice. Nothing is brought out to disbelieve the evidence of respondent No.1. Finding of learned magistrate as to due execution of the cheque and that petitioner failed to rebut the presumption under Section 139 of the Act has been concurred with by the learned Sessions Judge as well. I do not find reason to interfere with that concurrent finding. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one month and pay Rs.50,000/- as compensation. In default of payment of compensation, petitioner was directed to undergo simple imprisonment for one month. Appellate court confirmed conviction as well as the direction for payment of compensation. Learned counsel submitted that Crl.R.P.No.1763/2009 3 sentence imposed is excessive. 6. So far as substantive sentence is concerned, considering the nature of the offence and object of legislation I am inclined to think that simple imprisonment till rising of the court, payment of compensation as ordered by learned magistrate and in default of payment to undergo simple imprisonment for two months is sufficient in the ends of justice. 7. Learned counsel for petitioner requested two months' time to deposit the compensation in the trial court. Considering the amount involved and the circumstances stated by learned counsel, I am inclined to allow that request. Resultantly, this revision 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 two months' time to deposit the compensation ordered by learned magistrate in the trial court. In case of default, he shall undergo simple imprisonment for two months. iii. Petitioner shall appear in the trial court on 11.8.2009 to receive the sentence. Crl.M.A.No.5395 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks