IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.Rev.Pet.No. 1806 of 2009() ------------------------------ CRA.970/2008 of ADDL.SESSIONS COURT (ADHOC-II), ERNAKULAM CC.911/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- P.VENUGOPALA BHAT, S/O. PADAMANABHA BHAT, SREE DURGA HARDWARES, HILL PALACE ROAD, TRIPUNITHURA-1. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.P.J.JINIMOL SRI.S.SARATH RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRADEEP KUMAR S.KAMATH, S/O. S. KAMATH, CC NO. 8/2177, SANTHI BHAVAN, A.K. ROAD, KOCHI-2. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1806 of 2009 -------------------------------------- Dated this the 10th day of June, 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 make and which is not prejudicial to him. 2. This revision is in challenge of the judgment of learned Additional Sessions Judge (Adhoc-II), Ernakulam in Crl.Appeal No.970 of 2008 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) but modifying the sentence awarded by the learned magistrate. According to respondent No.2, petitioner owed Rs.50,000/- to him and for the discharge of that liability issued Ext.P1, cheque dated 10.6.2005, that cheque on presentation was dishonoured for insufficiency of funds on 15.6.2005 and on getting dishonour intimation on 17.6.2005, he issued notice to the petitioner intimating dishonour and demanding payment. That notice was served on the petitioner on 25.6.2009. Petitioner did not pay the amount and instead sent a reply dated 6.7.2005 taking false contentions. Respondent No.2 gave evidence as PW1 and proved Exts.P1 to P6. Ext.P1 is the cheque in question. Dishonour of that cheque for the above said reason and issue and service of statutory notice are proved by Exts.P2 to P5. Ext.P6 is the reply to the statutory notice. Crl.R.P.No.1806/2009 2 3. Petitioner gave evidence as DW1. He claimed that he had no transaction with respondent No.2 but a signed blank cheque was given to Kamalnath Bhat, brother of the petitioner before 2000 in connection with a partnership business petitioner had with said Kamalnath Bhat. Respondent No.2 stealthily got the signed blank cheque from said Kamalnath Bhat and misused it. Courts below did not believe that version of petitioner and found that petitioner issued the cheque for the discharge of legally enforceable debt/liability. Courts below also found that petitioner failed to rebut the presumption under Section 139 of the Act. Those findings are challenged in this revision. 4. Though the contention raised by the petitioner when questioned under Section 313 of the Code of Criminal Procedure is that he had no dealings with respondent No.2 and gave signed blank cheque to his brother, Kamalnath Bhat before 2000, he practically admitted the transaction with respondent No.2 in Ext.P6, reply. He also admitted the issuance of cheque to respondent No.2 except that he had not put date on the cheque. When he was confronted with Ext.P6, he blamed his counsel who issued that reply notice on his behalf and stated that the said statement in Ext.P6 was without his instruction. 5. It is true that being accused in a case, it is open to the petitioner to take up inconsistent or contradictory pleas but, certainly that will have a bearing on the question whether his contention is correct or not. When a notice is sent by the counsel, there is a presumption that it is issued on the instruction given by the client. It is for the client to rebut that presumption. In this case petitioner is not disowning Ext.P6. He only says that the statements in Ext.P6 are without Crl.R.P.No.1806/2009 3 his instruction. There is no reason to think so. Courts below observed that if petitioner had a case that the cheque in question was issued prior 2000, he could have produced the counter foil of the cheque book or summon the relevant records from his bank to prove that the cheque book containing Ext.P1 was issued to him prior to 2000. Petitioner did not attempt to do so. On the other hand, there is the evidence of respondent No.2 which I find no reason to disbelieve. On the facts, circumstances and evidence on record courts below rightly found that petitioner issued the cheque for the discharge of a legally enforceable debt/liability. I do not find any illegality, impropriety or irregularity in the finding of the courts below as to the due execution of the cheque and failure of the petitioner to rebut the presumption under Section 139 of the Act. 5. So far as dishonour of the cheque for insufficiency of funds and service of statutory notice are concerned, there is no challenge in this revision. Conviction of the petitioner under such circumstances is legal and proper and required no interference. 6. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months and to pay fine of Rs.55,000/- with default sentence for six months. In appeal the sentence was modified as simple imprisonment till rising of the court and fine of Rs.50,000/- Default sentence was modified as simple imprisonment for one month. In the nature of the offence committed, I do not find reason to interfere with the sentence as modified by the appellate court. 7. Learned counsel submitted that petitioner is involved in two other cases of similar nature with direction for payment of fine and hence, Crl.R.P.No.1806/2009 4 petitioner may be granted six months' time to deposit fine in the trial court as ordered by the appellate court. Considering the amount involved and the circumstances stated by the learned counsel, I am inclined to grant four months' time to the petitioner to deposit the fine as ordered by the appellate court. Resultantly, this revision fails. It is dismissed. Petitioner is granted four months' time to deposit the fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 12.10.2009 to receive the sentence. Crl.M.A.No.5478 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks