IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.Rev.Pet.No. 1828 of 2009() ------------------------------ CRA.566/2004 of ADDL. SESSIONS COURT FAST TRACK COURT NO.II, PALAKKAD ST.4620/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- PRAHLATHAN, S/O.K.P.NARAYANAN, PAYALIYIL HOUSE, KUNDALIYOOR, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.I.SAGEER RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.B.VINAYAN, S/O.BALAN, BHAGAVATHI NILAYAM, DEVANKAPURAM, CHITTUR TALUK. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1828 of 2009 -------------------------------------- Dated this the 10th day of June, 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 and which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track Court-II, Palakkad confirming conviction and sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. According to respondent No.2, petitioner borrowed Rs.30,000/- from him undertaking to repay the same within on month and on demanding payment petitioner issued Ext.P1, cheque dated16.6.1995 for the discharge of that liability. That cheque was dishonoured for insufficiency of funds as stated in Exts.P2 and P3 and on getting dishonour intimation, respondent No.2 issued notice to the petitioner intimating the dishonour and demanding payment. Issue and service of notice are not disputed and are proved by Exts.P5 and P6. Petitioner sent Ext.P7, reply denying that he had any transaction with respondent No.2. He claimed that he happened to issue the cheque in question to respondent No.2 as security. Respondent No.2 gave evidence as PW1 and testified to his case. Petitioner did not adduce any evidence. Courts below Crl.R.P.No.1828/2009 2 found in favour of due execution of the cheque and that the petitioner failed to rebut the presumption under Section 139 of the Act. It is contended that the finding is not correct. 4. It is not in dispute that Ext.P1 contained the signature of the petitioner, that it was drawn on the account maintained by him and that he had handed over the cheque to respondent No.2. According to the petitioner he had no transaction with respondent No.2 and the cheque was given as security. In other words, petitioner also is not disputing that he had a liability to respondent No.2 though according to him, cheque was given as security. Petitioner however has not adduced evidence as to how he happened to give cheque as security to respondent No.2. On the other hand there is evidence of respondent No.2 as to the transaction and execution of the cheque. Nothing is brought out to disbelieve the evidence of respondent No.2. Courts below in these circumstances are justified in holding in favour of due execution of the cheque. Petitioner has not rebutted the presumption under Section 139 of the Act. Hence conviction is legal and proper and required no interference. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay Rs.35,000/- as compensation. In default of payment of compensation, petitioner was directed to undergo simple imprisonment for two months. Appellate court confirmed the conviction as well as the direction for payment of compensation. Learned counsel requested that Crl.R.P.No.1828/2009 3 substantive sentence may be modified as imprisonment till rising of the court and that petitioner may be granted four months' time to deposit the compensation in the trial court. Learned counsel states that petitioner is a coolie by occupation and that pursuant to the order of the appellate court, petitioner has already deposited Rs.8,000/- in the trial court. In the facts and circumstances of the case, I am satisfied that simple imprisonment till rising of the court, fine of Rs.35,000/- and in default of payment, simple imprisonment for two months is sufficient in the ends of justice. 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. Instead of compensation, petitioner is sentenced to pay fine of Rs.35,000/- (Rupees thirtyfive thousand only) and in default of payment of fine, to undergo further simple imprisonment for two months. iii. Petitioner is granted three months' time to deposit the fine in the trial court. iv. It is made clear that the amount if any deposited by the petitioner in the trial court shall be adjusted in the fine directed to be paid hereby. v. Fine if realised shall be paid to respondent No.2 as compensation under Section 357(1) of the Code of Criminal Procedure. Crl.R.P.No.1828/2009 4 vi. Petitioner shall appear in the trial court on 14.9.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 14.9.2009. Communicate the order to the court concerned. Crl.M.A.No.5536 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks