IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Crl.Rev.Pet.No. 2477 of 2009() ------------------------------ CRA.671/2007 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.2840/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- P.V.GOPALAN NAIR, S/O.VELAYUDHAN NAIR, LAKSHMI NIVAS, KALIYAD POST, SHORNUR, OTTAPALAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE OF KERALA ---------------------------------------------- 1. K.CHANDRAN, S/O.NARAYANAN, KALLUVALAPPIL HOUSE, POST PATHAMKULAM, PANAMANNA, OTTAPALAM TALUK. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2477 of 2009 -------------------------------------- Dated this the 3rd day of August , 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge-I, Palakkad in Crl.Appeal No.671 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner issued cheque for Rs.94,000/- for the discharge of a debt and that cheque was dishonoured for insufficiency of funds. Ext.P1 is the cheque dated 26.4.2004. Its dishonour for insufficiency of funds is proved by Exts.P2 and P3. Issue and service of statutory notice on petitioner are proved by Ext.P4 series. Ext.P5 is the reply. In Ext.P5, petitioner denied that he had any transaction with respondent No.1. Respondent No.1 gave evidence as PW1 to whom it was suggested that petitioner had borrowed Rupees one lkah from financiers, Vijayan and Anil and Ext.P1 was given in signed blank form as security. That cheque was misused. Petitioner preferred a complaint against the said persons and there was a mediation but they failed to return the cheque. Respondent No.1 denied that suggestion. It is contended that due execution of Crl.R.P.No. 2477/2009 2 the cheque is not proved. 3. Respondent No.1 has given evidence regarding the transaction and execution of the cheque. According to him petitioner brought Ext.P1 filled up and signed the same in his presence. He asserted that petitioner borrowed Rs.94,000/- from him and for repayment of that amount issued the cheque. 4. It is true that petitioner has a contention as to how else the cheque happened to be in the custody of respondent No.1. But the suggestion that the cheque was given to Vijayan and Anil is denied by respondent No.1. Apart from Ext.P5, reply to the notice, there is nothing on record to show that petitioner had any transaction with Vijayan or Anil or that Ext.P1 was given to them in the circumstances pleaded by petitioner. Courts below observed that there is no reason to disbelieve the evidence of respondent No.1. In these circumstances I do not find reason to interfere with the finding of the courts below that petitioner issued the cheque in favour of respondent No.1 for discharge of a legally enforceable debt/liability. Petitioner has failed to rebut the presumption under Section 139 of the Act. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. There was a direction for payment of compensation of Rs.94,000/- to respondent No.1 and in default of payment to undergo simple imprisonment for one month. Appellate court while confirming direction for payment of compensation and default sentence modified the substantive sentence as simple imprisonment till rising of the court. Having regard to the nature of offence and amount involved I do not find reason to Crl.R.P.No. 2477/2009 3 interfere with the sentence, direction for payment of compensation or the default sentence awarded, at the instance of petitioner. 6. Learned counsel submitted that petitioner is aged and ill and is unable to raise the amount immediately on account of financial difficulties. Learned counsel requested that petitioner may be granted six months’ time to deposit compensation . Considering the circumstances stated by learned counsel and the amount involved I am inclined to grant time to the petitioner till 30.12.2009 to deposit compensation in the trial court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 from today to deposit compensation in the trial court. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks