IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 Crl.Rev.Pet.No. 1762 of 2009() ------------------------------ CRA.200/2007 of ADDL. SESSIONS JUDGE(ADHOC)-I, MANJERI CC.713/2005 of JUDICIAL FIRST CLASS MAGISTRATE-I, PERINTHALMANNA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------ A.K.RAVEENDRAN, S/O.KRISHNAN, SYAM NILAYAM, MATTARA P.O., ARAKKUPARAMBA, KARINKALLATHANI, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S)/RESPONDENTS/COMPALINANT & STATE. ----------------------------------------------------------- 1. A.V.ABDUL KHADER, S/O.HAMZA, AZHUVALAVLL HOUSE, JUMA MASJID ROAD, PERINTHALMANNA, MALAPPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1762 of 2009 -------------------------------------- Dated this the 5th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of concurrent findings entered by the courts below that the cheque issued by the petitioner in favour of respondent No.1 for the discharge of liability to the tune of Rupees one lakh was dishonoured for the reason that account was closed and that in spite of dishonour intimation and demand petitioner did not discharge the liability and thereby committed offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rupees one lakh from him on a promise to repay the amount within one month, petitioner did not repay the amount and on respondent No.1 demanding repayment, petitioner issued cheque dated 1.10.2005. That cheque was dishonoured for the reason that account was closed on 2.8.2005. Notice was issued to the petitioner intimating dishonour and demanding payment. Petitioner sent Ext.P6, reply. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P6. Ext.P1 is the cheque dated 1.10.2005. Dishonour of the cheque for the reason above stated is proved by Ext.P2. It is not the case of Crl.R.P.No.1762/2009 2 the petitioner that his account was closed otherwise than as per instruction given by him. Issue and service of notice are proved by Exts.P3 series to P5. Ext.P6 is the reply. Contention raised by the petitioner is that he had borrowed only Rs.10,000/- from respondent No.1 and at the time of that transaction a signed blank cheque was given, he repaid the amount but respondent No.1 did not return the cheque. Courts below were not inclined to accept that contention. So far as the due execution of the cheque is concerned, it is not disputed by petitioner that Ext.P1 contains his signature though that by itself did not amount to admission or proof of due execution. But that went a long way in proving the due execution of the cheque. There is also evidence of respondent No.1 as PW1 as to the transaction and execution of the cheque. In fact, petitioner also did not dispute that he entrusted that cheque to respondent No.1 though according to him, in signed blank form in connection with the borrowal of Rs.10,000/-. Petitioner did not adduce any evidence to show that he had borrowed only Rs.10,000/- or that, Ext.P1 was in signed blank form and that inspite of discharging that liability, respondent No.1 refused to return the cheque. Petitioner did not take any steps to get back the cheque inspite of alledgedly discharging the liability. The mere fact that a reply is sent is not sufficient to hold that evidence of respondent No.1 as to the due execution of the cheque cannot be accepted. 3. It is contended by learned counsel that at any rate as dishonour of the cheque was for the reason that account was closed, prosecution under Section 138 of the Act will not lie. Learned counsel placed reliance on the Crl.R.P.No.1762/2009 3 decision of the Karnataka High Court in Nagaraja Upadhya v. Sanjeevan (2008 (2) KLT Short Note 20 (case No.24). There, it was observed that on the date of issuance of cheque, account of the accused was closed at the instance of the bank and not at the instance of the accused and hence, Section 138 of the Act is not attracted. 4. In this case petitioner has no case that account was closed not at his instance but at the instance of the bank. There is also no evidence in that line. Moreover, the evidence which the courts below accepted would show that the account was closed on 2.8.2005 while petitioner issued the cheque on 1.10.2005. That means, there was no account in the name of petitioner as on 1.10.005. In other words, there was no money in the account of the petitioner mentioned in the cheque on the day that cheque was issued and was presented for encashment. If that be so, the contention that the offence under Section 138 of the Act is not made out cannot be entertained. On the evidence on record, I do not find reason to interfere with the conviction of the petitioner for offence punishable under Section 138 of the Act. 5. So far as sentence is concerned, learned magistrate awarded simple imprisonment for two months and directed the petitioner to pay compensation of Rupees one lakh with a default sentence of two months. Appellate court modified the substantive sentence to simple imprisonment till rising of the court but retained the direction for payment of compensation and the default sentence. There is no reason to interfere with the sentence as modified by the appellate court and the direction for payment of compensation Crl.R.P.No.1762/2009 4 and the default sentence provided. 6. Learned counsel requested that petitioner may be granted four months time to deposit compensation in the trial court. It is stated that petitioner is not able to raise the sum of Rupees one lakh immediately. Considering the amount involved and the circumstances stated by the learned counsel, petitioner is granted three months time to deposit compensation in the trial court. Resultantly, this revision petition is dismissed. Petitioner is granted three months' time from this day to deposit compensation in the trial court. It is made clear that it will be sufficient compliance with direction for payment of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging the receipt of the compensation within the aforesaid time. Petitioner shall appear in the trial court on 10.9.2009 to receive the sentence. Crl.M.A.No.5390 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks