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. 1884 OF 2009() --------------------------------------------- CRA.957/2006 OF II ADDL. SESSIONS COURT, TRIVANDRUM ST.52/2005, JFCM, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- P.ANILKUMAR,S/O.PRABHAKARAN NAIR, AMBIKA SADANAM,KURIYATHI,MANACAUD.PO, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY SRI.RIJA RESPONDENT(S): COMPLAINANT & STATE ----------------------------------------------------------- 1. MULAMOOTTIL CONSUMER CREDITS LTD,REG; OFFICE AT HOMESTEAD,MUSEUM BAINS COMPOUND, NANTHANCODE,THIRUVANANTHAPURAM REPRESENTED BY ITS ASST.MANAGER,S.RAVEENDRAZN NAIR,S/O.SANKARA PILLAI AGED 63 YEARS,"ASWATHI",SREEKRISHNA NAGER, CHAVADIMUKKU,SREEKARIYAM,THIRUVANANTHAPURAM. 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 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1884 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of June, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to it. 2. Petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) on a concurrent finding entered by the courts below that he issued the cheque in discharge of a legally enforceable debt/liability and he did not pay the amount in spite of dishonour intimation and demand. Respondent No.1 is a limited company engaged in hire purchase business. It is alleged that petitioner issued the cheque dated 25.11.2004 for Rs.17,900/- in partial discharge of his liability to it in connection with a hire purchase transaction and that the cheque was dishonoured for insufficiency of funds when presented by respondent No.1. It got dishonour intimation on 30.11.2004. Thereon notice was given to the petitioner intimating dishonour and demanding payment. That notice was served on petitioner on 6.12.2004. Petitioner did not pay the amount. Nor did he reply. Hence the complaint. 3. Power of Attorney holder of respondent No.1 gave CRL. R.P. No.1884 of 2009 -: 2 :- evidence as P.W.1 on the strength of the authorisation letter. He stated to the transaction between respondent No.1 and petitioner and the latter issuing the cheque in partial discharge of his liability. Exhibit P1 is that cheque. Its dishonour for insufficiency of funds and issue and service of notice are proved by Exts.P2 to P6. Finding of the courts below as to the cause of dishonour and issue and service of notice is not challenged. Challenge is only against execution of the cheque. 4. According to the petitioner he had given a blank cheque as security at the time of transaction and that has been misused. P.W.1 however denied that suggestion. Petitioner does not dispute the fact that he had business transaction with respondent No.1 and owed money to it. Nor has he denied fact of giving the cheque to respondent No.1 which according to him was merely as a security. Petitioner was not successful in his challenge to the evidence of P.W.1 on behalf of respondent No1. Nothing was brought out to disbelieve the evidence of P.W.1. Petitioner did not reply to the statutory notice served on him demanding payment of Rs.17,900/- as per the dishonoured cheque. Courts below have considered the evidence and circumstances to hold that petitioner issued the cheque for discharge of legally enforceable debt/liability. Petitioner failed to rebut the CRL. R.P. No.1884 of 2009 -: 3 :- presumption under Sec.139 of the Act. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one month. He was directed to pay fine of Rs.17,900/- and in default of payment to undergo simple imprisonment for 15 days. Appellate court modified the substantive sentence as simple imprisonment for 10 days. Direction for payment of compensation was converted as fine with a default sentence of simple imprisonment for 10 days. It was also directed that fine if realised will be given to respondent No.1 as compensation. Learned counsel for petitioner submitted that substantive sentence imposed on the petitioner may be modified. 6. In the nature of the offence committed I am satisfied that simple imprisonment till rising of the court will be sufficient in the ends of justice. At the same time there is no reason to interfere with the direction for payment of fine. However in default of payment of fine petitioner shall undergo simple imprisonment for one month. 7. Learned counsel requested three months' time to deposit the fine in the trial court. Counsel submitted that petitioner is unable to raise the money immediately. Considering the submission of learned counsel and circumstances of the case, petitioner is granted two months' time to deposit the fine in the trial court. CRL. R.P. No.1884 of 2009 -: 4 :- Resultantly, this revision is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Sentence to the extent it concerned payment of fine of Rs.17,900/-(Rupees Seventeen thousand and nine hundred only) is retained. Petitioner is granted two months' time from this day to pay the fine in the trial court failing which he shall undergo simple imprisonment for one month. (iii) Fine if realised shall be given to respondent No.1 as compensation under Section 357(1) of the Code of Criminal Procedure. Petitioner shall appear in the trial court on 20.8.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv