IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.Rev.Pet.No. 1769 of 2009() ------------------------------ CRA.522/2006 of ADDL. SESSIONS COURT-II, TRIVANDRUM ST.848/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOHN, S/O. NARAYANAN, GEORGE BHAVAN, KANAKUZHY, ARYANADU. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAVINDRAN, SURYA SOMA, ARYANADU VILLAGE. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1769 of 2009 -------------------------------------- Dated this the 9th day of June, 2009. ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Additional Sessions Judge-II, Thiruvananthapuram in Crl.Appeal No.522 of 2006 confirming conviction but modifying sentence awarded by the learned magistrate for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. According to respondent No.2, petitioner borrowed Rs.50,000/- from him and on 27.11.2003 issued Ext.P1, cheque dated 30.3.2002 for the discharge of that liability. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. On getting dishonour intimation respondent No.2 issued notice to the petitioner intimating the dishonour and demanding payment. Issue and service of notice are proved by Exts.P3 to P5. Respondent No.2 gave evidence as PW1 and spoke to his case. He claimed that petitioner borrowed Rs.50,000/- from him and for the discharge of that liability issued the cheque. Contention raised by the petitioner is that respondent No.2 was conducting a chitty having sala of Rs.25,000/-, he subscribed to one kuri, received the amount Crl.R.P.No.1769/2009 2 and at that time respondent No.2 obtained signed blank cheque as security. He happened to default payment of future instalments to the tune of Rs.10,000/-. Thereon, respondent No.2 misused the cheque and preferred the complaint. 4. So far as dishonour of the cheque for insufficiency of funds and issue and service of statutory notice are concerned, there is no contention raised before me nor do I find reason to interfere with the concurrent findings entered by the courts below in that regard. 5. Challenge in this revision is to the finding regarding execution of the cheque. That, Ext.P1 contains the signature of petitioner and it was drawn on the account maintained by the petitioner are not disputed. It is admitted that petitioner had some transaction with respondent No.1 and in connection with that, petitioner gave the cheque to respondent No.2. According to the petitioner he had not borrowed Rs.50,000/- from respondent No.2 and instead a sum of Rs.10,000/- was payable to respondent No.2 by way of defaulted instalments in a kuri to which petitioner had subscribed. So far as that contention is concerned, what is available is only the plea raised by the petitioner when questioned under Section 313 of the Code of Criminal Procedure and suggestions to that effect to respondent No.2 which the latter denied. Petitioner has not proved or even probabilised his contention that he had given signed blank cheque in the circumstances pleaded by him. On the other hand there is the evidence of respondent No.2 coupled with the fact that petitioner did not reply to the notice Crl.R.P.No.1769/2009 3 served on him intimating the dishonour of the cheque for Rs.50,000/- and demanding payment of that amount. There is also no reason to disbelieve the evidence of respondent No.2. In these circumstances, courts below are justified in holding in favour of due execution of the cheque and that petitioner failed to rebut the presumption under Section 139 of the Act. No interference in revision is required. 6. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one and a half months and directed him to pay Rs.50,000/- as compensation. There is a default sentence of one and a half months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court and compensation was converted as fine with default sentence of one month. I do not find reason to interfere with the sentence as modified by the appellate court. 7. Counsel for petitioner requested four (4) months’ time to deposit fine in the trial court. Learned counsel submits that petitioner is unable to raise the amount in lump. Considering the amount involved and also the circumstances stated by learned counsel, I am inclined to grant three months’ time to the petitioner to deposit fine in the trial court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted three months’ time from today to deposit fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on Crl.R.P.No.1769/2009 4 14.9..2009 to receive the sentence. Crl.M.A.No.5413 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks