IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.Rev.Pet.No. 2118 of 2009() ------------------------------ CRA.588/2008 of ADDL.SESSIONS COURT (ADHOC-II), ERNAKULAM CC.46/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SUNIL P.ALIAS, AGED 35 YEARS, S/O.ALIAS MATHEW, RESIDING AT PAYYARICKAL HOUSE, THOMMANKOTHU P.O., THODUPUZHA. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.SOUTHERN MOTOR FINANCE, MUVATTUPUZHA, REP.BY ITS MANAGING PARTNER- K.P.PAUL. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2118 of 2009 -------------------------------------- Dated this the 2nd day of July, 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 in this revision which is not prejudicial to it. 2. Petitioner faced trial in the court of learned Judicial Magistrate of First Class-II, Muvattupuzha in C.C.No.46 of 2008 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). That case arose on a complaint preferred by respondent No.2, a private financier represented by its managing partner. According to respondent No.2 there was a hire purchase transaction between it and one Elias Mathew and petitioner was a guarantor in that transaction. For the sum of Rs.28,000/- due to respondent No.2, petitioner issued Ext.P2, cheque dated 13.3.2004 for the said amount. That cheque on presentation was dishonoured for insufficiency of funds. On getting dishonour intimation respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Dishonour and issue and service of notice on petitioner are proved by Exts.P3 to P7. Managing partner of respondent No.2 gave evidence as PW1. Ext.P1 is copy of hire purchase agreement. Ext.P8 is the partnership deed. He claimed that in connection with the hire purchase transaction petitioner stood as a guarantor and Crl.R.P.No.2118/2009 2 Rs.28,000/- was due to respondent No.2. Ext.P9 is certified copy of the hire purchase ledger maintained by respondent No.2 which proved that Rs.28,000/- was due to it. Petitioner claimed that he had given a signed blank cheque as security. He did not adduce any evidence in that line. It is contended that finding of the courts below regarding the execution of the cheque is not correct. 3. Evidence of PW1 and Exts.P1 and P9 show that Rs.28,000/- was due to respondent No.2 in connection with the hire purchase transaction. It is revealed from the evidence that petitioner was the guarantor in that transaction. Though petitioner contended that he had given signed blank cheque as security, that contention is not substantiated. That suggestion was denied by PW1. Petitioner did not reply to the notice served on him. Courts below assessed the evidence let in by respondent No. 2 and came to the conclusion that petitioner issued the cheque for discharge of a legally enforceable debt/liability. That finding is not in any way vitiated by any illegality, irregularity or impropriety calling for interference. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment till rising of the court and directed payment of Rs.28,000/- with interest at the rate of 6% per annum from 13.3.2004 till the date of payment as compensation under Section 357(3) of the Code of Criminal Procedure. A default sentence of imprisonment for six months was also provided. Learned Additional Sessions Judge while retaining the substantive sentence of imprisonment till rising of the court converted compensation as fine of Crl.R.P.No.2118/2009 3 Rs.28,000/- and in default of payment to undergo simple imprisonment for three months. Having regard to the nature of offence and the amount involved there is no reason to interfere with the sentence as modified by the appellate court. 5. Learned counsel submits that petitioner is in financially difficult situation, unable to raise money immediately and requested three months’ to deposit the fine in the trial court. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to allow the request for time. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted three months’ time from today to deposit the fine in the trial court as ordered by the appellate court and in default of payment to undergo imprisonment as ordered by the appellate court. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. Crl.M.A.No.6435 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks