IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.REV.PET.NO. 1656 OF 2009() ---------------------------------------------- CRA.341/2007 OF SESSIONS COURT, PATHANAMTHITTA CC.1390/2006 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- P.C.JACOB, PUTHEN ELAMPURAYIDAHTHIL VEEDU, KURIYANOOR.P.O., KOZHENCHERRY, PATHANAMTHITTA. BY ADV. SRI.E.M.MURUGAN RESPONDENT(S): COMPLAINANT/STATE -------------------------------------------------------- 1. M.G.GOPINATHAN NAIR, ETHEN COTTAGE, PULLADU.P.O., PATHANAMTHITTA. 2. STATE OF KERALA,REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1656 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of May, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to respondent No.1. 2. Petitioner stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 filed a private complaint alleging that petitioner issued Ext.P1, cheque dated 11.4.2006 for Rs.3,00,000/- for the discharge of a legally enforceable debt/liability to him. That cheque was dishonoured for insufficiency of funds. In spite of statutory notice served on the petitioner, he did not pay the amount. Respondent No.1 gave evidence as P.W.1 and proved Exts.P1 to P6. Exhibit P1 is the cheque. Its dishonour for the above reason is proved by Exts.P2 and P3. Issue and service of notice to the petitioner are proved by Exts.P4 to P6. Case pleaded by the petitioner is that the cheque leaf was stolen from his shop by respondent No.1. But petitioner did not adduce evidence in that line. At the time of hearing counsel for petitioner submitted that on a complaint made by the petitioner police have registered a case against respondent No.1 for CRL. R.P. No.1656 of 2009 -: 2 :- fraudulently taking away the cheque leaf from the shop of the petitioner. But counsel fairly conceded that records of the criminal case were not produced in any of the courts below. What is available in this case is only the suggestion put to respondent No.1 which of course he denied. Petitioner did not reply to the statutory notice. If actually no amount was due to respondent No.1 and he stealthily collected the cheque from the possession of the petitioner, petitioner would not have hesitated to reply to the statutory notice and intimate respondent No.1 how he allegedly got custody of the cheque. Petitioner has no proper explanation why he did not reply to the notice. It is not disputed that the cheque (Ext.P1) is signed by the petitioner and it is drawn on his account. If petitioner lost a signed blank cheque from his custody, he would have certainly informed his banker about that. That also was not done. Mere fact that a complaint is preferred to the police is not sufficient. Respondent No.1 as P.W.1 has given evidence about the transaction and execution of the cheque. Nothing is brought out to disbelieve him. In the circumstances courts below accepted the evidence of P.W.1 and found in favour of due execution of the cheque. Petitioner did not succeed in rebutting the presumption under Sec.139 of the Act. No interference is called for CRL. R.P. No.1656 of 2009 -: 3 :- with the concurrent findings entered by the courts below in that regard. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. Petitioner was also sentenced to pay fine of Rs.3,00,000/-. In appeal substantive sentence was modified as simple imprisonment till rising of the court and fine was converted as compensation of Rs.3,00,000/- and in default of payment to undergo simple imprisonment for one month. Substantive sentence as modified and direction for payment of compensation as also the default sentence are legal and proper and required no interference. 4. Counsel requested that petitioner may be granted four months' time to deposit the compensation. Counsel submitted that petitioner is involved in another case of same nature where he has been directed to pay Rs.2,50,000/- as compensation. Having regard to the nature of offence, the amount involved and the circumstances stated by the learned counsel I am inclined to allow the request made on behalf of the the petitioner. Resultantly, revision fails. It is dismissed. Petitioner is granted four months' time from this day to deposit the compensation as CRL. R.P. No.1656 of 2009 -: 4 :- ordered by the appellate in the trial court for payment to respondent No.1. Petitioner shall appear in the trial court on 29.9.2009. THOMAS P.JOSEPH, JUDGE. vsv