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. 2452 of 2009 ------------------------------ CRA.434/2008 of ADDL. SESSIONS COURT, ALAPPUZHA CC.47/2007 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- K.SASIKUMAR, AGED 40, S/O. KESAVAN, VATTAPPARAMBIL, KAKKAZHAM P.O., AMBALAPPUZHA. BY ADV. SRI.V.SANTHARAM SRI.ANTO THOMAS RESPONDENT/RESPONDENTS/COMPLAINANTS -------------------------------------------------------------------- 1. KUNJU PILLAI G., AMBIKA BHAVAN, KANJIPPADAM P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- THOMAS.P.JOSEPH, J - - - - - - - - - - - - - - - - - - - - - Crl. R.P.No.2452 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2009 J U D G M E N T This revision is in challenge of judgment of learned Additional Sessions Judge, Alappuzha in Crl.Appeal No.434 of 2008 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act (for short, 'the Act'). I have dispensed with notice to respondent No.1 in view of the order, I propose to pass which is not prejudicial to respondent No.1. 2. According to respondent No.1, petitioner borrowed Rs.25,000/- (Rupees Twenty five thousand only) and for repayment of that amount issued Ext.P1, cheque dated 15.7.2006. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. Respondent No.1 gave evidence as PW1 and stated to his case. According to Crl. R.P.No.2452 of 2009 2 the petitioner, he had borrowed only Rs.10,000/- from respondent No.1 and given a signed blank cheque as a security. Though, he repaid the amount with interest, respondent No.1 did not return the cheque. That cheque has been misused. Courts below found against that contention and held that due execution of the cheque is proved. It is contended that the finding is not correct. 3. So far as execution of the cheque is concerned, it is admitted that petitioner had financial transaction with respondent No.1 and in connection with that, the cheque was given to respondent No.1. Though petitioner contended that the amount borrowed was only Rs.10,000/- and that amount has been repaid, there is neither evidence nor any circumstance to prove or probablise that contention. Petitioner did not also reply to the notice served on him. There is no reason to disbelieve the evidence of respondent No.1. In the circumstances, finding of the courts below regarding due execution of the cheque Crl. R.P.No.2452 of 2009 3 requires no interference. Petitioner has not rebutted the presumption under section 139 of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and payment of fine of Rs.25,000/-. A default sentence of imprisonment for two months was also provided. It was directed that the fine if realised will be paid to respondent No.1 as compensation. Appellate court confirmed the sentence. It is contended by learned counsel that sentence imposed is excessive. Learned counsel requested that petitioner may be granted six months time to deposit the fine. 5. Having regard to the nature of offence I am satisfied that simple imprisonment till raising of the court and fine as awarded by learned magistrate is sufficient in the ends of justice. Considering the difficulties of petitioner stated by learned counsel, petitioner is granted time till 30.12.2009 to deposit fine in the trial court. Crl. R.P.No.2452 of 2009 4 6. Resultantly, this revision petition is allowed in part to the following extent:- i) Imprisonment awarded to the petitioner is modified as simple imprisonment till raising of the court. ii) While retaining the sentence of fine and default sentence petitioner is granted time till 30.12.2009 to deposit fine in the trial court. In case of failure, he shall undergo default sentence as ordered by learned magistrate. iii) 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 remain any abeyance. THOMAS.P.JOSEPH, JUDGE. app/-