IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH SEPTEMBER 2008 / 18TH BHADRA 1930 Crl.Rev.Pet.No. 3204 of 2008() ------------------------------ CRA.739/2003 ON THE FLE OF THE COURT OF SESSION, KOZHIKODE DIVISION CC.157/2002 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, KOZHIKODE. .................... REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------- M.K.PAUL, S/O.KOCHAPPAN, BAND MASTER, NEW PRABHATH BAND COMPANY, Y.M.C.A.ROAD, KOZHIKODE. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE ---------------------------------------------- 1. K.K.NARAYANAN, S/O.KRISHNAN NAMBOOTHIRI, PULPARAMBIL HOUSE, CHEROOPPA AMSOM DESOM, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thomas P. Joseph, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 3204 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - O R D E R Revision petitioner is aggrieved by the concurrent findings entered by the learned Judicial First Class Magistrate -III, Kozhikode in C.C. No.157/2002 and the learned Addl. Sessions Judge, Kozhikode in Crl.A.No.739/2003 arising therefrom. The 1st respondent initiated proceedings against the revision petitioner for the offence punishable under section 138 of the Negotiable Instruments Act. His case is that petitioner who had borrowed Rs.35,000/- from him issued Ext.P1 cheque dated 31-1-2000 for the discharge of that debt and on presentation, it was dishonoured for insufficiency of funds (as proved by Exts.P2 and P3). Notice intimating the dishonour and demanding payment of the amount was issued to the petitioner on 21-2-2000 service of which on the revision petitioner is proved by Exts.P4(a) and (b). In spite of that, the revision petitioner did not pay the amount. Courts below held in favour of the due execution of cheque, found the petitioner guilty of the offence under section 138 of the Negotiable Instruments Act and sentenced him to undergo simple Crl.R.P.3204/2008 2 imprisonment for three months and to pay compensation of Rs.35,000/- to the 1st respondent. The appellate court confirmed the conviction and modified the substantive sentence as till the rising of the court. Revision petitioner is still aggrieved and has come up in revision. 2. I heard the learned counsel for the petitioner and Public Prosecutor appearing for the 2nd respondent. In view of the manner in which the revision petition is being disposed of, notice to the 1st respondent is not necessary and hence notice to the 1st respondent is dispensed with. 3. Learned counsel for the petitioner submitted that concurrent finding entered by the courts below regarding execution of the cheque is not correct. I went through the judgments of the courts below and find that it was on an appreciation of evidence given by the 1st respondent that the said finding was arrived at. In fact, going through the judgments, what is revealed is that the petitioner had no definite case as to the circumstances under which the signed cheque leaf happened to be in the custody of the 1st respondent. It was contended that the signature in the cheque is in a different handwriting than that of the writings in the body of the cheque obviously to suggest that Crl.R.P.3204/2008 3 the cheque was filled up by the 1st respondent in accordance with his whims and fancies. But, even if it is assumed that the writings and signature are in different hand as claimed by the revision petitioner, that cannot defeat the case of the first respondent. Though admission of signature in the cheque does not amount to admission or proof of due execution of the cheque, it certainly went a very long way in proving the due execution of the cheque. There is also the evidence of the 1st respondent as PW1. Fact remains that in spite of being intimated about the dishonour cheque, the revision petitioner did not even reply. On considering the evidence as discussed by the courts below in the judgments under challenge, I do not find any reason to interfere with the findings entered by the courts below. 4. Learned Sessions judge modified the substantive sentence of simple imprisonment to simple imprisonment till rising of the court, while confirming the direction for payment of compensation. The revision petitioner now wants breathing time to deposit the amount. In the facts and circumstances of this case, I am inclined to accede to that request. The revision petition is therefore, dismissed. However, the revision petitioner is granted three months' time to deposit the compensation. The Crl.R.P.3204/2008 4 compensation shall be deposited in the trial court on or before that day. He will appear in the court below on 9-12-2008 to receive the sentence. Thomas P. Joseph, Judge. mn.