IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 Crl.Rev.Pet.No. 1825 of 2009() ------------------------------------- AGAINST JUDGMENT DTD 29.4.2009 IN CRA.366/2006 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD C.C.NO.201/2004 OF JFCM MANNARKKAD. .................... REVN. PETITIONER(S): APPELLANT ----------------------------------------- K.C.K. MOIDUTTY, S/O. CHERIYAKUNHAMMED SAHIB, KALLADI HOUSE, PERIMBADURI.P.O, MANNARKKAD. BY ADV. MR.MANSOOR.B.H. RESPONDENT(S): RESPONDENTS AND STATE ----------------------------------------------------- 1. P. AJITHKUMAR, S/O. CHENNU, AGED 37 YEARS, PALAKKADIL HOUSE, PAYYANADOM.P.O, MANNARKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1825 OF 2009 ---------------------------------------- Dated this the 11th day of June, 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not to the prejudice of respondent No.1. Public Prosecutor takes notice for respondent No.2. 2. Petitioner against whom the courts below have entered concurrent findings as to the due execution of a cheque for Rs.1,30,000/-, its dishonour for insufficiency of funds and his failure to pay the amount within the statutory time of being served notice of dishonour has come up in revision challenging the findings. 3. Respondent No.1 claimed that petitioner borrowed Rs.1.30,000/- from him on 15.9.2003 and issued cheque dated 15.9.2003 the same day for the discharge of that liability. That cheque was returned 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 Crl.R.P.No.1825/09 2 petitioner. He replied, according to respondent No.1, raising false contentions but did not pay the amount. Hence the complaint. Respondent No.1 gave evidence as PW1 and testified to his case. He proved Exts.P1 to P5. Ext.P1 is the cheque dated 15.9.2003. Exts.P2 and P3 memos are produced to show its dishonour for the reason stated above. Ext.P4 series are copy of notice, postal receipt and acknowledgment card signed by the petitioner which proved issue and service of statutory notice. Ext.P5 is the reply. Petitioner did not adduce any evidence but it was suggested to respondent No.1 that he had no transaction with respondent No.1, no amount was due to the latter and no cheque also was issued. But in Ext.P5 reply sent on behalf of petitioner what he pleaded is that he had taken only Rs.1 lakh from respondent No.1 and issued a blank cheque as security. Courts below were not impressed by the contention raised by the petitioner, accepted the evidence of respondent No.1 and found the petitioner guilty. 4. There is no challenge before me to the finding of the Crl.R.P.No.1825/09 3 courts below as to the case of dishonour and service of notice within the stipulated time. Contention is only as to the finding relating to the execution of the cheque. It is true that petitioner as an accused in a criminal case is entitled to take up inconsistent or contradictory pleas but, certainly that is a matter which is relevant for consideration while appreciating the evidence of respondent No.1 and the defence set up by the petitioner. In this case, though plea raised in the case is that petitioner had no transaction with respondent No.1 it is stated in Ext.P5, reply that he had taken a loan of Rs.1 lakh from respondent No.1. He however did not adduce evidence or bring out circumstances in support of that contention. There is no reason to think that petitioner had given a signed blank cheque to respondent No.1 as security. Mere fact that petitioner has sent reply and that too, which contradicts his plea in the case is not sufficient to disbelieve the evidence of respondent No.1. Courts below have considered these aspects and found that petitioner issued the cheque in favour of respondent No.1 for the discharge of a legally enforceable Crl.R.P.No.1825/09 4 debt/liability. It was also found that petitioner failed to rebut the presumption under Section 139 of the Act. I do not find reason to interfere with the finding of the courts below. 5. Substantive sentence of imprisonment for six months awarded by learned magistrate was modified by the appellate court to Simple Imprisonment till rising of the court. The direction issued by learned magistrate to the petitioner to pay compensation of Rs.1,30,000/- and in default of payment to undergo Simple Imprisonment for sixty days was confirmed by the appellate court. Considering the nature of offence and the amount involved, I do not find any reason to interfere with the sentence as modified by the appellate court or, the direction for payment of compensation. 6. Learned counsel prayed that three months’ time may be granted to the petitioner to deposit compensation. He stated that petitioner is not able to raise the amount in lump unless he is granted some time. 7. Considering the submission made by the learned counsel and the amount involved, I am inclined to grant three Crl.R.P.No.1825/09 5 months’ time from today to deposit compensation in the trial court. Resultantly, this revision fails. It is dismissed. Petitioner is granted three months’ time to deposit compensation as ordered by the trial court. Petitioner shall appear in the trial court on 15.9.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1825/09 6