IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2486 of 2009() ------------------------------ CRA.167/2009 of ADDL.DISTRICT AND SESSIONS JUDGE(ADHOC-III), N.PARAVUR ST.4176/2006 of JUDICIAL MAGISTRATE OF FIRAST CLASS - II, N.PARAVUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- MATHEW C.MATHEW, SOLE PROPRIETOR, MATHEW C.MATHEW & SONS, POST BAG NO.5211, ALAPPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S)/RESPONDENTS/C0OMPLAINANT AND STATE ----------------------------------- 1. E.S. VIDHYADARAN, S/O SANKARAN, EDAPPARAMBIL HOUSE, CHARAKKADU MURI, MOOTHAKUNNAM VILLAGE, 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2486 of 2009 -------------------------------------- Dated this the 10th 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(Adhoc-III), North Paravur in Crl.Appeal No.167 of 2009 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). It is contended that conviction of petitioner is not legal and proper. According to respondent No.1 petitioner owed Rs.2,50,000/- to him and for repayment of that amount issued Ext.P1, cheque dated 2.6.2005. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Service of statutory notice on petitioner is not disputed and is proved by Exts.P3 to P5. Ext.P6 is the reply. According to the petitioner he neither owed any amount to respondent No.1 nor issued any cheque in his favour. Instead, Sajeevan a relative of respondent No.1 was his employee in a coir factory. The said Sajeevan who was dismissed from service stealthily removed signed blank cheque from his office and that has been misused. Petitioner did not adduce any evidence in support of that contention. So far as execution of the cheque is concerned, there is evidence of Crl.R.P.No.2486/2009 2 respondent No.1 regarding the transaction and execution of the cheque. On the side of petitioner what is available is only Ext.P6, reply and the suggestion put to respondent No.1 which the latter denied. There is no evidence or circumstance to hold that the cheque was stealthily taken by the said Sajeevan and given to respondent No.1. That, respondent No.1 admitted that the said Sajeevan is related to him does not mean that respondent No.1 got custody of the cheque in the circumstances pleaded by petitioner. There is no evidence or circumstance to support that contention. On going through the judgments under challenge and hearing learned counsel I find no reason to interfere with the concurrent finding entered by the courts below 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months, payment of fine of Rs.2,50,000/- and in default of payment to undergo simple imprisonment for six months. It was directed that fine if realized will be paid to respondent No.1 as compensation. Appellate court did not interfere with the sentence. It is contended by learned counsel that sentence imposed is excessive. 4. Learned counsel requested that imprisonment awarded to the petitioner may be avoided and that petitioner may be granted six months time to deposit fine since petitioner is unable to raise the amount immediately on account of financial difficulties. Having regard to the nature of offence and object of legislation I am of the view that substantive sentence of imprisonment Crl.R.P.No.2486/2009 3 imposed on petitioner can be set aside. There is however no reason to interfere with sentence of fine and default sentence awarded by the learned magistrate and confirmed by the appellate court. Considering the circumstances stated by learned counsel I am inclined to grant time to the petitioner till 29.1.2010 to deposit fine. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence of imprisonment awarded to the petitioner is set aside. ii. While retaining sentence of fine and default sentence awarded by the learned magistrate and confirmed by the appellate court, petitioner is granted time till 29.1.2010 to deposit fine in the trial court. In case of failure to deposit fine as aforesaid, petitioner shall appear in the trial court on 30.1.2010 to receive the default sentence. Execution of warrant if any against the petitioner will stand in abeyance till 30.1.2010. THOMAS P.JOSEPH, Judge. cks