IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 Crl.Rev.Pet.No. 4076 of 2007() ------------------------------ CRA.555/2005 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.595/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ SREEDHARAN, S/O.KRISHNAN, KAREEPADATH HOUSE, P.O.KARAYAVATTOM, VALAPPAD VILLAGE. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- 1. MAYOORAM FINANCE CORPORATION, THALIKULAM BRANCH, REPRESENTED BY BALAN, S/O.MAYOOR KUNHIMON, THALIKULAM DESOM, CHAVAKKAD. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.4076 of 200 ---------------------------------------- Dated this the 4th day of January 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The sentence imposed by the trial court was modified by the appellate court. The petitioner now faces a sentence of imprisonment till rising of court and there is a further direction to pay a total amount of Rs.38,715/- as compensation and cost and in default to undergo S.I for a period of three months. 2. The cheque is for an amount of Rs.33,715/- and bears the date 20/5/2002. The same is marked as Ext.P1. Notice of demand was duly received and it evoked Ext.D3 reply. As payment was not made within the stipulated time, the complainant approached the court. The accused denied the offence. The complainant examined PW1 and proved Exts.P1 to P11. The accused took the stand that the cheque was not issued for the due discharge of any legally enforcible debt/liability but was issued only as security when a chitty was bid by him and proceeds were paid to him. He relied on Exts.D1 and D2 pass Crl.R.P.No.4076/2007 2 books evidencing the chitty transaction between him and the complainant and the sister concern of the complainant and himself. Ext.D3 is the reply notice. The complainant took the stand that the cheque was issued for the due discharge of a liability in a loan transaction which was distinct and different from Exts.D1 and D2 chitty transaction between the accused and the complainant and the sister concern. To drive home this contention, the complainant proved Ext.P10 loan application as also Ext.P11 voucher which show that the accused had applied for a loan for running a hotel business and the said amount of Rs.25,000/- had been paid to the accused. 3. In the light of Exts.P1,P10 and P11, it was certainly for the accused to establish satisfactorily that Ext.P1 was not issued for the due discharge of the liability under Exts.P10 and P11 and it was issued only as security when the amount due in the chitty transaction was paid to the accused. Significantly, except Exts.D1 to D3, no evidence was adduced by the complainant. Nay, it is significant that when PW1 was in the witness stand there was not a whisper of the dispute about Exts.P10 and P11 documents. Even in Ext.P3, the courts below have noted that, there was no contention that any document Crl.R.P.No.4076/2007 3 other than the cheque was handed over as a blank signed document to the complainant by the accused. 4. The presumption under Section 139 of the Negotiable Instruments Act does also stare at the petitioner and the petitioner has, it must be held, not succeeded in discharging that burden. 5. The sentence imposed is absolutely reasonable and lenient and there is no room for any further leniency. 6. This Crl.R.Pis in these circumstances dismissed . The impugned concurrent verdict of guilty and conviction and the sentence imposed by the appellate court are upheld. 7. Finally the learned counsel for the petitioner prays that a breathing time may be given to the petitioner to make the payment and to avoid the default sentence. I do, in these circumstances, direct that the petitioner shall have time till 31/01/2008 to make the payment and avoid the default sentence. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 01/02/2008 for execution of the impugned sentence. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.4076/2007 4 Crl.R.P.No.4076/2007 5 R.BASANT, J C.R.R.P.No. Crl.R.P.No.4076/2007 6 ORDER 21ST DAY OF JULY 2006