IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Crl.Rev.Pet.No. 1963 of 2009 ------------------------------ CRA.693/2005 of ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.4142/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER/APPELLANT/ ACCUSED: ---------------------------- RAJI VINCENT, PARTNER, M/S.NEW KERALA MOTOR DRIVING SCHOOL, KALLIYATH BUILDING, 4TH FLOOR, PALACE ROAD, THRISSUR.(D/O.VINCENT, CHUNKATH HOUSE, MARATHAKARA, THRISSUR DIST.). BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT/RESPONDENT/COMPLAINANT -------------------------- 1. COMMON MAN'S CHITTIES & LOANS(P)LTD., ERINJERI ANGADI, THRISSUR-1, REP.BY POA HOLDER DAVIS, S/O.KADAVI RAPPAI, OLLUR VILLAGE & DESOM, THRISSUR TALUK. 2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI.C.S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1963 of 2009 --------------------------------------- Dated this 30th day of June 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track-1), Thrissur in criminal appeal No.693 of 2005 confirming conviction and sentence of petitioner for the offence punishable under Sec.138 of Negotiable Instruments Act. 2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision. Heard counsel for petitioner and the Public Prosecutor who appeared for respondent No.2. Learned counsel submits that petitioner is only seeking time to pay the compensation ordered by the court below. 3. Case arose on a private complaint preferred by respondent No.1. According to respondent No.1 which is a private limited company engaged in conducting chitty M/s. New Kerala Motor Driving School subscribed to three kuries and prized the same. They, along with the petitioner executed agreement in favour of respondent No.1 undertaking to pay future instalments without default. Petitioner and Crl.R.P.No.1963 of 2009 2 his co-obligants failed to pay the future instalments. For the sum of Rs.34,468.50 due on that account petitioner issued Ext.P1, cheque dated 30-05-2003 that cheque was dishonoured for insufficiency of funds. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on the petitioner but he did not pay the amount. Hence the complaint. Ext.P1 is the cheque dated 30-05-2003. Its dishonour for the reason stated above is proved by Exts.P2 and P3. Exts.P4 to P6 proved the issue and service of statutory notice. Ext.P7 is the true copy of resolution taken by the Board of Directors of respondent No.1 to initiate proceedings against petitioner. PW1, officer of respondent No.1 gave evidence regarding the alleged transaction. He stated that petitioner and his co-obligants defaulted payment of 27th to 37th instalments and for the sum of Rs.34,468.50 due, petitioner issued the cheque. When questioned under Sec.313 of Code of criminal Procedure petitioner contended that the cheque was gave as security at the time the amount was raised by the subscribers. To PW1 the only challenge was that the subscribers are not impleaded in the complaint Crl.R.P.No.1963 of 2009 3 as accused. Courts below after consideration of the evidence found in favour of due execution of the cheque. That finding is under challenge in this revision. 4. Going by the contention raised on behalf of petitioner it is not disputed that M/s. New Kerala Motor Driving School had subscribed to three kuries conducted by respondent No.1, prized the same and raised the amount. It is also not seriously disputed that petitioner along with the subscribers executed agreement in favour of respondent No.1 undertaking to pay the future instalments without default. It has come in evidence that it is for payment of the defaulted instalments that petitioner issued the cheque. Hence the contention that cheque was issued merely as security cannot be accepted. It is also to be borne in mind that in spite of being served with statutory notice petitioner did not reply. In these circumstances courts below are justified in holding in favour of due execution of the cheque for discharge of legally enforceable debt/liability. Petitioner failed to rebut the presumption under Sec.139 of the Act. Hence conviction requires no interference. Crl.R.P.No.1963 of 2009 4 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment till rising of the court. Petitioner was directed to pay Rs.34,469 (Rupees Thirty Four Thousand Four Hundred and Sixty Nine Only) to respondent No.1 by way of compensation and in case of default to undergo imprisonment for one month. Having regard to the nature of the offence and the amount involved there is no reason to interfere with the sentence and direction for payment of compensation or the default sentence. 6. Learned counsel requested that petitioner may granted four months' time to deposit the compensation. Learned counsel says that petitioner is not able to raise the amount immediately. Having regard to the submission of the learned counsel and considering the amount involved petitioner is granted three months' time to deposit compensation in the trial court. Resultantly this revision fails. It is dismissed. Petitioner is granted three months' time from today to deposit compensation in the trial court. In case of failure, he has to undergo default sentence as ordered by learned magistrate. It is made clear that it will be sufficient Crl.R.P.No.1963 of 2009 5 compliance of the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of the amount within the period aforesaid. Petitioner shall appear in the trial court on 05-10-2009 to receive sentence. THOMAS P JOSEPH, JUDGE Sbna/