IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2491 of 2009() ------------------------------ CRA.527/2007 AND CRL.R.P.NO.78/2007of ADDL. SESSIONS COURT -II, TRIVANDRUM CC.61/2004 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- MOHAMMED IQBAL, AIR INTERNATIONAL TOURS AND TRAVELS, N.G.O.UNION BUILDING, P.M.G.JUNCTION, THIRUVANANTHAPURAM. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------- 1. M/S.RIYA TRAVELS AND TOURS INDIA (P)LTD SAMARIAS CENTRE, P.M.G.JUNCTION, THIRUVANANTHAPURAM. COMPANY REGISTRED UNDER THE COMPANIES ACT, 1956 - REPRESENTED BY ITS SALES MANAGER, ESU AMRITHAM). 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2491 of 2009 -------------------------------------- Dated this the 10th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to it. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of common judgment passed by learned Additional Sessions Judge-II, Thiruvananthapuram in Crl.Appeal No.527 of 2007 and Crl.R.P.No.78 of 2007. Petitioner faced trial in the court of learned Chief Judicial Magistrate, Thiruvananthapuram in C.C.No.61 of 2004 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1 petitioner owed Rs.7,75,000/- to him and for repayment of that amount issued Ext.P5, cheque dated 10.1.2004. That cheque was dishonoured for insufficiency of funds as proved by Ext. P6. Service of statutory notice on petitioner is proved by Exts.P7 to P9. Ext.P10 is the copy of reply sent on behalf of petitioner. PW1 gave evidence on behalf of respondent No.1 as authorized by Exts.P1 and P2. He proved Ext.P15 to show that the amount covered by Ext.P5 is due to respondent No.1. Petitioner examined DW1, manager of the drawee bank. According to the petitioner on the assurance that respondent No.1 would give him facility for business on credit basis he issued five signed blank cheques in the year, 2001 but he was not Crl.R.P.No.2491/2009 2 given any such facility and instead, one of those signed blank cheques has been misused. Exts.D1 to D7 are cheques issued to respondent No.1 on earlier occasions but which were returned to the petitioner on payment of the amount. Ext.D9 is the visiting card of the petitioner and Ext.D8, statement of account produced by the petitioner. Learned Chief Judicial Magistrate did not refer to the evidence of DW1 and there was no serious discussion also on the defence evidence let in. But learned Additional Sessions Judge has referred to the evidence adduced by the petitioner and found that contention of petitioner cannot be sustained. Learned Chief Judicial Magistrate sentenced the petitioner to pay Rs.7,75,000/- to respondent No.1 by way of compensation with a default sentence of imprisonment for six months. While directing payment of compensation no sentence of imprisonment was passed. Noting that illegality, respondent No.1 filed Crl.R.P.No.78 of 2007, while conviction and direction for payment of compensation were challenged by petitioner in Crl.Appeal No.527 of 2007. Appeal and revision were heard by learned Additional Sessions Judge and disposed of by common judgment. Conviction stands confirmed. Petitioner is sentenced to undergo simple imprisonment for three months and pay fine of Rs.7,75,000/- with default sentence of imprisonment for six months. That common judgment is under challenge in this revision. 3. So far as due execution of the cheque is concerned, it is not disputed that Ext.P5 is signed by the petitioner and is drawn on the account maintained by him. What is attempted to be proved through DW1 and as contended by petitioner is that he gave signed blank cheques to respondent Crl.R.P.No.2491/2009 3 No.1 on the assurance that credit facility will be provided. Exts.D1 to D7 only show that cheques given to respondent No.1 were returned to the petitioner and even as per the version of petitioner it was on payment of money due under those cheques. On the other hand Ext.P15 shows that the amount covered by Ext.P5 is due to respondent No.1. Regarding due execution of the cheque, PW1 has given evidence. PWs 2 and 3 have supported the evidence of PW1 in that regard. Courts below found that there is no reason to disbelieve the evidence of PW1. On going through the judgment of learned Additional Sessions Judge and hearing learned counsel I find no reason to differ from that finding. 4. So far as sentence is concerned, it is submitted by learned counsel that petitioner is now aged around 70 years and that imprisonment may be avoided. Having regard to the nature of offence and the facts stated by learned counsel I am inclined to think that sentence of fine as awarded by learned Additional Sessions Judge is sufficient in the ends of justice. Learned counsel requested that petitioner may be granted six months’ time to deposit fine. Learned counsel stated that on account of financial difficulties petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel, I am inclined to grant time to the petitioner till 29.1.2010 to deposit fine. . Resultantly, this revision is allowed in part to the following extent: i. Sentence of imprisonment awarded to the petitioner is set aside. Crl.R.P.No.2491/2009 4 ii. While retaining the sentence of fine awarded by learned Additional Sessions Judge, default sentence and the direction for payment to respondent No.1, petitioner is granted time till 29.1.2010 to deposit fine in the trial court. Petitioner shall appear in the trial court on 30.1.2010 to receive the default sentence in case fine is not deposited as aforestated. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks