IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 1880 of 2009() ------------------------------ CRA.600/2007 of I ADDL. SESSIONS COURT, THRISSUR CC.848/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- SUBIRE, S/O. ABDUL KHADER, ERNAKULAM HOUSE, VADAMA VILLAGE, MALA. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- 1. XAVIER, S/O. VAREED, EDATTUKARAN HOUSE, CHALIL HOUSE, VADAMA VILLAGE, MALA. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1880 of 2009 -------------------------------------- Dated this the 17th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is aggrieved by the concurrent finding entered by courts below as to the due execution of cheque and his failure to rebut the presumption under Section 139 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1 petitioner borrowed Rs.80,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 15.1.2004. That cheque on presentation for encashment was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to petitioner on intimating dishonour and demanding payment of amount. Issue and service of notice on petitioner are proved by Exts.P4 to P6. P etitioner neither replied nor paid the amount. Respondent No.1 was preferred the complaint. He gave evidence as PW1 and claimed that petitioner borrowed the amount from him during the first week of January, 2004 undertaking to repay the amount immediately and on fifteenth day of the transaction, petitioner issued the cheque for discharge of that liability. Petitioner did not have any specific defence though, he generally denied the allegations against him. He did not Crl.R.P.No.1880/2009 2 also explain how else the cheque happened to be in the custody of respondent No.1. Courts below found in favour of due execution of the cheque and held the petitioner guilty. That finding of guilt is challenged in this revision. 3. It is admitted and proved by respondent No.1 that Ext.P1 is an instrument drawn on the account maintained by the petitioner. Petitioner has no case that he had not given the cheque to respondent No.1. As I stated, he did not have any specific case as to how else the cheque happened to be in the custody of respondent No.1. Cheque has been produced by respondent No.1 from his custody. That instrument created liability on the petitioner. Petitioner did not also respond to the notice served on him. Nothing was brought out to disbelieve the evidence of respondent as to the transaction and execution of cheque. It is taking into consideration these circumstances and evidence that courts below held that petitioner issued the cheque for discharge of a legally enforceable debt/liability. It was found that petitioner failed to rebut the presumption under Section 139 of the Act. I find no reason to interfere in revision 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for eight months and directed him to pay Rs.80,000/- to respondent No.1 as compensation. In case of default, petitioner was directed to undergo default sentence of imprisonment for four months. Appellate court while retaining direction for payment of compensation of Rs.80,000/- modified the default sentence to one month. Substantive sentence was modified as simple imprisonment till rising of the court. Considering the loss caused to respondent Crl.R.P.No.1880/2009 3 No.1 by dishonour of cheque and the object of legislation, I do not find reason to interfere with the direction for payment of compensation or the default sentence provided. Substantive sentence as modified by the appellate court also does not require interference. 5. Learned counsel submits that petitioner is a driver by occupation and finds it difficult to raise the sum of Rs.80,000/- immediately. He requested six months time for the petitioner to discharge the liability. Having regard to the circumstances stated by learned counsel and the amount involved, I am inclined to grant four months’ time to the petitioner to deposit compensation in the trial court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted four months’ time from today to deposit compensation as ordered by the appellate court, in the trial court for payment to respondent No.1. In case of default he has to undergo imprisonment as ordered by the appellate court. Petitioner shall appear in the trial court on 19.10.2009 to receive the sentence. Crl.M.A.No.5719 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks