IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 Crl.Rev.Pet.No. 1859 of 2009() ------------------------------ CC.1595/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA CRA.747/2008 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), N. PARAVUR. .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------ V.G. ASOKAN, AGED 42 YEARS, S/O. GOPALAN NAIR, DEVIKRIPA, KAPRASSERY, NEDUMBASSERY. BY ADV. MR. K.V.SABU RESPONDENT/RESPONDENT/COMPLAINANT:- -------------------------------------------------- 1. THRESIAMMA, THEKKAN HOUSE, CHURCH ROAD, VADAKKE ANGADI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. KAMAPPU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1859 OF 2009 ---------------------------------------- Dated this the 15th day of June, 2009 ORDER 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 which is not prejudicial to her. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-III), North Paravur in Crl. Appeal No.747/2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.75,000/- (Rupees seventy five thousand only) from her and for repayment of that amount, issued Ext.P1, cheque dated 23.6.2003. That cehque was dishonoured for insufficiency of funds as proved by Ext.P2, memo dated 11.7.2003. Respondent No.1 issued statutory notice to the petitioner on 15.7.2003 intimating dishonour and demanding payment of the amount covered by the cheque. Crl.R.P.No.1859/09 2 Ext.P4 is the receipt for sending the notice by registered post on 24.7.2003. Ext.P5 shows that notice was served on the petitioner on 26.7.2003. Petitioner sent Ext.P6, reply dated 29.7.2003. Respondent No.1 gave evidence as PW1 and asserted that petitioner borrowed Rs.75,000/- from her and issued the cheque. Contention raised by petitioner in Ext.P6, reply and when questioned under Section 313 of the Code of Criminal Procedure is that he had subscribed to a 'kuri' conducted by one Anitha, wife of a constable of Aluva Police Station, he prized the kuri and gave a signed blank cheque as security. Respondent No.1 is only a benami for the wife of police constable, misused the cheque and filed a complaint. Courts below held that apart from merely suggesting so and sending a reply to respondent No.1, no attempt was made by petitioner to substantiate or even probabilise his contention. 3. That, Ext.P1 contained the signature of petitioner and is drawn on the account maintained by him are not challenged before me and proved by respondent No.1. According to the petitioner, he handed over the cheque to Anitha but as rightly pointed out by the courts below what is available in that regard is only the assertion made by Crl.R.P.No.1859/09 3 petitioner which respondent No.1 denied with equal vehemence. She asserted that petitioner borrowed Rs.75,000/- from her and issued the cheque. When an instrument which created liability on petitioner is produced by respondent No.1 and there is nothing on record to disbelieve the version of respondent No.1, mere fact that a reply is given to the statutory notice and some suggestions in that line are put to the payee under the cheque are not sufficient. Petitioner could not discredit the version of respondent No.1. There is no reason to disbelieve the evidence of respondent No.1 regarding the transaction and execution of the cheque. Courts below have considered the evidence and found that petitioner issued the cheque for the discharge of the legally enforceable debt/liability and that he failed to rebut the presumption under Section 139 of the Act. Conviction of the petitioner in the circumstances required no interference. 4. Petitioner was sentenced to undergo Simple Imprisonment for six months. He was directed to pay compensation of Rs.75,000/-. There is also a default sentence for 60 days. Learned counsel requested that sentence may be modified. He also requested six months' time to deposit Crl.R.P.No.1859/09 4 compensation in the trial court. 5. Considering the nature of offence and the object of legislation, I am satisfied that Simple Imprisonment till rising of the court and compensation as awarded by the courts below with default sentence of three months is sufficient in the ends of justice. Considering the circumstances stated by learned counsel as to the difficulty of petitioner to raise the amount immediately, petitioner is granted three months' time from today to deposit compensation in the trial court. 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) Petitioner is granted three months' time from today to deposit Rs.75,000/- (Rupees seventy five thousand only) by way of compensation for payment to respondent No.1, in the trial court. In case of failure, petitioner shall undergo Simple Imprisonment for three months. iii) It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent No.1 through his counsel Crl.R.P.No.1859/09 5 in the trial court and respondent No.1 filed a statement in the trial court through her counsel within the said period of three months acknowledging receipt of compensation. iv) Petitioner shall appear in the trial court on 18.8.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd