IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 Crl.Rev.Pet.No. 1896 of 2009() ------------------------------ AGAINST JUDGMENT DT.8.4.2009 IN CRA.409/2007 of SESSIONS COURT, PALAKKAD ST.2345/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): ACCUSED --------------------------------------- P.S.MOHAMMED RAFEEQUE, S/O.P.A.SULAIMAN, PUTHEN PEEDIKAYIL HOUSE, PALLIPADI, KARIMBA P.O., MANNARKAD. BY ADV. MR.MANSOOR.B.H. RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VYAPARA VIJAYAM TRADERS & AGENCIES, REP.BY ITS MANAGER, P.MUKUNDANUNNI, R.S.S.BUILDING, MELAMURI, PALAKKAD. PUBLIC PROSECUTOR MR. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1896 OF 2009 ---------------------------------------- Dated this the 18th day of June, 2009 ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Sessions Judge, Palakkad in Criminal Appeal No.409 of 2007 confirming conviction of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying sentence of imprisonment as fine. Case arose on a private complaint preferred by respondent No.2. Respondent No.2, a Company engaged in hire purchase transactions alleged that petitioner entered into a hire purchase agreement with it and availed loan of Rs.40,000/-. Together with finance charges and insurance premium total amount due from the petitioner was Rs.56,340/-. Petitioner agreed to re-pay that amount in thirty six instalments. He paid only six instalments and for the balance amount due issued Ext.P2, cheque dated Crl.R.P.No.1896/09 2 17.6.2004 for Rs.18,780/-. That cheque was presented for encashment through the collecting bank but it was returned as 'account was closed'. Respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on the petitioner but he did not respond either by way of reply or by paying the amount. Representative of respondent No.1 gave evidence as PW1. Ext.P1 is the copy of resolution authorising PW1 to give evidence. Ext.P2 is the cheque in question. Its dishonour as account was closed is proved by Exts.P3 and P4. Issue and service of notice are proved by Exts.P5 and P6. 3. When questioned under Section 313 of the Code of Criminal Procedure petitioner denied that he had issued the cheque as alleged. He denied that he had any transaction with respondent No.2. Courts below considered the contention in the light of the evidence adduced by respondent No.2 and found that it cannot be accepted. Finding regarding execution of cheque is challenged in this revision. 4. It is true that respondent No.2 has not produced the hire purchase agreement or other documents relating to the transaction between petitioner and respondent No.2. But, in a Crl.R.P.No.1896/09 3 prosecution under Section 138 of the Act, it is not always necessary that the original cause of action must be proved. What is required to be pleaded and proved is that the cheque issued by the petitioner was dishonoured for insufficiency of funds and that in spite of dishonour intimation and demand petitioner did not pay the amount within statutory period. In this case, petitioner does not dispute that Ext.P2 contained his signature and that it is drawn on the account maintained by him. When the cheque is produced by respondent No.2. from its custody and that instrument created liability on the petitioner, he was expected to explain in what other manner that cheque happened to be in the custody of respondent No.2. That, he has not done. Courts below have observed that in spite of cross examination of PW1 nothing could be brought out to disbelieve him or reject the case of respondent No.2 as to the transaction and execution of cheque. It is also relevant in this connection to note that though petitioner was given notice about dishonour of the cheque and demanding payment of the amount, he did not reply to the notice. If he had no transaction with respondent No.2 and no amount was due under the cheque, one expected him to reply to the notice at Crl.R.P.No.1896/09 4 the earliest opportunity. Failure to do that is also a circumstance corroborating evidence of PW1 regarding the transaction and execution of cheque. On going through the judgments under challenge and hearing the submission of learned counsel, I do not find reason to interfere with conviction of petitioner as it does not suffer from any illegality, irregularity or impropriety. 5. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for one month and directed payment of compensation of Rs.18,780/- (Eighteen thousand seven hundred and eighty only) with a default sentence of two months. Appellate court modified the sentence as fine of Rs.18,780/- (Eighteen thousand seven hundred and eighty only) and in default of payment to undergo Simple Imprisonment for two months. There is no reason to interfere with the sentence as modified by the appellate court. 6. Learned counsel requested for three months' time to pay fine. Counsel submits that petitioner is unable to raise the amount immediately. Considering the submission made by learned counsel as to the difficult situation of petitioner, I am inclined to grant two months' time to the petitioner to deposit Crl.R.P.No.1896/09 5 fine in the trial court as ordered by the appellate court. In case of failure to pay fine within the aforesaid time, he will undergo simple imprisonment as ordered by the appellate court. Resultantly, this revision fails. It is dismissed. Petitioner is granted two months' time from today to deposit fine in the trial court. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1896/09 6