IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 Crl.Rev.Pet.No. 2299 of 2009 - ----------------------------- CRA.1163/2006 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM CC.881/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- KUTTIMOODU VIJAYAN, S/O.PADMANABHAN, MANI MANDIRAM, VELLUMANNADI, KUTTIMOODU, PULLAMPARA VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENTS/ RESPONDENTS/STATE & COMPLAINANT: ---------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABDUL RASHEED, S/O.MOHAMMED KANNU, NIZAM COTTAGE, MARATHUMOODU, PULLAMPARA VILLAGE. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2299 of 2009 --------------------------------------- Dated this 16th day of July 2009 ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.1. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-2, Attingal in C.C.No.881 of 2004 for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.2, petitioner borrowed Rs.200000/- from him on 12-02-02 agreeing to repay the same within three months and for discharge of that liability issued Exts.P1 and P2, cheques dated 12-06-2002 and 12-07-2002 for a total sum of Rs.200000/-. Dishonour of those cheques for insufficiency of funds is proved by Exts.P3 to P6. Issue and service of statutory notice on petitioner are proved by Exts.P7 to P9. Respondent No.2 gave evidence as PW1 regarding the transaction and execution of the cheques. According to the petitioner he borrowed Rs.50000/- from respondent No.2 and gave signed blank cheques. Though he repaid the amount respondent No.2 retained the cheques and has misused it. Petitioner examined DWs.1 and 2. They claimed to have seen petitioner receiving Rs.50000/- and giving the cheques to respondent No.2. DW2 claimed that he does not know Crl.R.P.No.2299 of 2009 2 what exactly was the amount borrowed by petitioner. Not impressed by the evidence of Dws.1 and 2 learned magistrate found in favour of due execution of the cheques and convicted petitioner. It is contended that conviction is not legal and proper. 3. It is not disputed that Exts.P1 ad P2 contained the signature of petitioner and those cheques are drawn on the account maintained by him. Inspite of being served with statutory notice petitioner did not reply to it. Mere fact that DW.1 stated that petitioner received only Rs.50000/- and returned it is not by itself sufficient to reject the evidence of respondent No.2 regarding the transaction and execution of the cheques particularly as petitioner did not reply to the statutory notice served on him. It is not shown that evidence of respondent No.2 is not reliable. Petitioner has no explanation for not replying to the statutory notice served on him. On going through the judgments under challenge and hearing counsel, I do not find reason to interfere with the finding entered by the courts below regarding due execution of the cheques. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of compensation of Rs.75000/-. Default sentence of imprisonment for two months was also provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Compensation was Crl.R.P.No.2299 of 2009 3 converted as fine of Rs.75000/- payable to respondent No.2. Three months imprisonment was awarded in case of non payment of fine. I do not find reason to interfere with sentence as modified by the appellate court. Learned counsel requested that petitioner may be granted six months' time for deposit of the fine. Learned counsel states that due to financial difficulty petitioner is unable to raise the amount immediately. Considering the circumstances stated by learned counsel petitioner is granted time till 30-12-2009 to deposit the fine. Resultantly this revision is fails. It is dismissed. Petitioner is granted time till 30-12-2009 to deposit fine as ordered by the appellate court. Petitioner shall appear in the trial court on 31-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31-12-2009. THOMAS P JOSEPH, JUDGE Sbna/