IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.Rev.Pet.No. 1992 of 2009() ------------------------------ CRA.557/2008 of SESSIONS COURT, ALAPPUZHA CC.894/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- THILAKAN, S/O.BHASKARAN, SUDHALAYAM, WARD NO.IV, CHERTHALA P.O., CHERTHALA. BY ADV. SRI.JOHN JUDE ISSAC RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. NICHOLAS SAVIO JOSE.V., VANNIAM PARAMBIL, PRIYALAYAM, CMC - II, CHERTHALA P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No. 1992 of 2009 -------------------------------------- Dated this the 24th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Sessions Judge, Alappuzha in Crl.Appeal No.557 of 2008 confirming conviction but modifying sentence imposed on petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 filed a private complaint alleging that petitioner borrowed Rs.50,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 23.6.2004. That cheque on presentation was dishonoured for insufficiency of funds. Respondent No.1 issued statutory notice to the petitioner intimating dishonour and demanding payment of the amount. Dishonour of the cheque for insufficiency of funds and service of statutory notice on petitioner are proved by Exts.2 to P6. Respondent No.1 gave evidence as PW1 and testified to the transaction leading to the execution of the cheque. To respondent No.1 it was suggested on behalf of petitioner, that one Dasan purchased gold ornaments for the marriage of his sister and that Dasan handed over the cheque to respondent No.1. Respondent No.1 denied that suggestion. In the cross examination of Crl.R.P.No.1992/2009 2 respondent No.1, petitioner did not suggest how the cheque happened to be in the custody of said Dasan. When questioned under Section 313 of the Code of Criminal Procedure petitioner stated that he borrowed Rs.4,000/- from the said Dasan and gave signed blank cheque to Dasan as security. Dasan cheated him and handed over the cheque to respondent No.1. Petitioner gave evidence in that line as DW1 but then he claimed that he had borrowed Rs.5,000/- from the said Dasan. Dasan gave evidence as DW2 supporting the petitioner. He claimed that petitioner borrowed Rs.2,500/- from him and handed over a cheque to him which on his making credit purchase from respondent No.1 handed over to respondent No.1. Courts below were not impressed by the evidence let in by the petitioner and found him guilty. That finding is under challenge in this revision. 3. It is true that petitioner being accused in a criminal case is entitled to raise inconsistent or contradictory pleas but that, he has no consistent case is relevant for consideration when appreciating the evidence. In this case courts below have pointed out that petitioner has no consistent case. To respondent No.1, it was not suggested how Dasan got custody of the cheque belonging to the petitioner. Explanation to that came only when petitioner was questioned under Section 313 of the Code. On the amount allegedly borrowed by petitioner from Dasan, there are atleast three versions ranging from Rs.2,500 to Rs.5,000. Petitioner when examined as DW1 stated that his transaction with DW2 was in Crl.R.P.No.1992/2009 3 the year, 2003 but according to DW2, the transaction was during 2001-2002. To crown all these petitioner did not reply to the statutory notice served on him. On the other hand nothing is brought out to disbelieve respondent No.1. Courts below considered the evidence let in by the parties, held that the explanation offered by the petitioner cannot be accepted and relying on the evidence of respondent No.1 and the documents produced by him found that petitioner issued the cheque for repayment of the amount due to respondent No.1 I do not find reason to interfere with that finding. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for four months and directed him to pay fine of Rs.65,000/- with default sentence of imprisonment for two months. Appellate court while confirming the fine part of sentence and default sentence, modified the substantive sentence as simple imprisonment till rising of the court. There is no reason or scope for further leniency in the matter of sentence. 5. Learned counsel submits that petitioner is in financially difficult situation unable to raise money immediately and requested five months’ time to deposit fine. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant three months’ time to deposit the fine. Crl.R.P.No.1992/2009 4 Resultantly, this revision petition fails. It is dismissed. Petitioner is granted three months’ time to deposit fine as ordered, in the trial court. Petitioner shall appear in the trial court on 26.9.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks