IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 CRL.REV.PET.NO. 2797 OF 2009() -------------------------------------------- CRA.31/2008 OF SESSIONS COURT, KOTTAYAM ST.412/2007 OF JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------- K.P.PRAMODKUMAR, OFFICE OF THE SPECIAL TAHASILDAR, L.A.N.H., CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY SRI.B.S.KRISHNA KUMAR RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT -------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. G.K.NAIR, NARAYANAN VILASAM, NALUKODY P.O.,CHANGANACHERRY. PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2797 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of August, 2009 O R D E R -------------- Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor took notice for respondent No.1. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in Crl. Appeal No.31 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 3. According to respondent No.2 petitioner owed Rs.70,000/- to him and for discharge of that liability issued Ext.P1, cheque dated 26.10.2004. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.2 gave evidence as P.W.1 and stated to his case. Petitioner contended that he had some transaction with one Jayaprakash and given a cheque to him. Respondent No.2 got that cheque from Jayaprakash and misused the same. It is contended that due execution of the cheque is not proved. 4. It is true that petitioner did not admit that he had CRL. R.P. No.2797 of 2009 -: 2 :- transaction with respondent No.2 or issued the cheque to him. But there is evidence of respondent No.2 regarding transaction and execution of the cheque. Petitioner though contended that he had some transaction with one Jayaprakash and given the cheque to him, there is no evidence in that line. Suggestion made to respondent No.2 to that effect was denied by him. Petitioner has not replied to the statutory notice. In the circumstances courts below found no reason to disbelieve the evidence of respondent No.2. On going through the judgments under challenge and hearing learned counsel I find no illegality, irregularity or impropriety in the finding entered by the courts below regarding execution of the cheque. Petitioner has failed to rebut the presumption under Sec.139 of the Act. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. He was directed to pay compensation of Rs.70,000/- and in default of payment sentence of simple imprisonment for one month was provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Direction for payment of compensation was converted as fine of Rs.70,000/- with default sentence of imprisonment for one month. Having regard to the nature of offence and amount involved I CRL. R.P. No.2797 of 2009 -: 3 :- find no reason to interfere with the sentence as modified by the appellate or the default sentence provided, at the instance of petitioner. 6. Learned counsel requested four months’ time to deposit the fine. According to learned counsel on account of financial difficulties petitioner is unable to raise the amount immediately. Considering the circumstances stated by learned counsel I am inclined to allow the request. Resultantly this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance THOMAS P.JOSEPH, JUDGE. vsv