IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.REV.PET.NO. 2553 OF 2009() ------------------------------------------ CRA.579/2007 OF ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM ST.258/2006 OF JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ------------------------------------------------------- T.K.WILSON, WILSON & COMPANY, VATTACHERIL BUILDING, BAKER JUNCTION, KOTTAYAM. BY ADV. SRI.JOSE JOSEPH (MANNAR) RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------------------------------------------- 1. ANIL CHACKO, MANNOOSSERIL HOUSE, PEROOR P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2553 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of August, 2009 O R D E R -------------- 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. Petitioner is challenging his conviction and sentence as modified by the learned Additional Sessions Judge (Special) in Crl. Appeal No.579 of 2009 for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed money from him and for repayment of that amount issued Ext.P1, cheque dated 3.10.2005 stated in the judgments under challenge as Rs.2,25,000/-. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2, P3 and P7. Service of notice on petitioner intimating dishonour and demanding payment is proved by Exts.P4 to P6. According to the petitioner, D.W.1 introduced respondent No.1 to him and arranged a loan of Rs.1,00,000/-. Petitioner and his relative, Thomas John borrowed Rs.1,00,000/- each from respondent No.1. He obtained several signed blank cheques from petitioner and the said Thomas John. Petitioner repaid the sum of CRL. R.P.. No.2553 of 2009 -: 2 :- Rs.1,00,000/- borrowed by him on 6.8.2005 but Thomas John did not repay the amount. Hence making use of one of the signed blank cheques given by petitioner, he has been falsely implicated. D.W.1 stated that he introduced petitioner to respondent No.1 and arranged loan of Rs.1,00,000/- to petitioner. He also stated that at that time respondent No.1 obtained several signed blank cheque leaves from petitioner. Courts below were not inclined to believe the evidence of D.W1 and found petitioner guilty. That verdict is under challenge in this revision. It is contended by learned counsel that courts below should have accepted the evidence of D.W.1. 3. Though petitioner has a case that himself and Thomas John were introduced to respondent No.1 by D.W.1 and both of them borrowed Rs.1,00,000/- each from respondent No.1 version of D.W.1 is that at the time of transaction only himself and petitioner were present. Learned magistrate has referred to that and stated that version of D.W.1 does mot tally with the plea set up by the petitioner. It is true that weakness of the case of petitioner is not a ground to accept the case pleaded by respondent No.1. But in evaluating the evidence various circumstances which has emerged in the evidence has to be looked into. So far as alleged transaction and execution of CRL. R.P.. No.2553 of 2009 -: 3 :- cheque are concerned, respondent No.1 has given evidence as P.W.1. Petitioner was not able to successfully challenge that evidence. He did not reply to the notice. It is admitted that Ext.P1 contained the signature of petitioner and it is drawn on the account maintained by him and in connection with the financial transaction he had with respondent No.1 that cheque was given to the latter. Courts below in the circumstances are justified in upholding the claim of respondent No.1 regarding due execution of the cheque. Petitioner failed to rebut the presumption under Sec.139 of the Act. 4. In modification of the sentence awarded by learned magistrate and direction for payment of compensation, learned Additional Sessions Judge imposed fine of Rs.2,25,000/- with a default sentence of simple imprisonment for four months. There is also a direction that fine if realised will be paid to respondent No.1 as compensation. Having regard to the nature of offence and the amount involved I find no reason to interfere with the sentence as modified by the appellate court at the instance of petitioner. 5. Learned counsel requested six 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 CRL. R.P.. No.2553 of 2009 -: 4 :- circumstances stated by learned counsel petitioner is granted time till 5.1.2010 to deposit the fine as ordered by the appellate court. In case of failure petitioner shall appear in the trial court on 7.1.2010 to receive the default sentence. Resultantly this revision petition fails. It is dismissed. Petitioner is granted time till 5.1.2010 to deposit the fine in the trial court as ordered by the appellate court. In case of failure petitioner shall appear in the trial court on 7.1.2010 to receive the default sentence. Until then execution of warrant if any, against petitioner will remain in abeyance THOMAS P.JOSEPH, JUDGE. vsv