IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 Crl.Rev.Pet.No. 1868 of 2009() ------------------------------ CRA.251/2008 of SESSIONS COURT, KOTTAYAM ST.938/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- CHACKO JOSEPH, KORATHARA HOUSE, KURISUMMODU P.O. CHANGANACHERRY BY ADV. SRI.P.VINODKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. SUNNY THOMAS, KOOTHRAPPALLIL HOUSE, KOOTHRAPPALLY P.O.CHANGANACHERRY. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PPROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 SRI.LIJI.J.VADAKEDOM FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/06/2009, ALONG WITH CRL.R.P.NO.1867/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.Nos.1867 of 2009 & 1868 of 2009 -------------------------------------- Dated this the 19th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. These revisions are in challenge of separate judgments passed by the learned Sessions Judge, Kottayam in Crl.Appeal Nos.249 of 2008 and 251 of 2008 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the sentence. Since the parties in these revisions are same and the facts involved are also similar, revisions are being disposed of by a common order. 3. In Crl.R.P.No.1867 of 2009 arising from S.T.No.939 of 2006 of the court of learned Judicial Magistrate of First Class-I, Kottayam case of respondent No.1 is that petitioner borrowed Rs.78,500/- from him and for repayment of that amount, issued Ext.P1, cheque dated 15.11.2005. That cheque on presentation was returned for insufficiency of funds as proved by Exts.P2 and P3. On getting dishonour intimation respondent No.1 issued notice to the petitioner on 31.1.2006 (Ext.P4 is the copy of notice) intimating dishonour and demanding payment of the amount. Ext.P5 is produced to show that notice Crl.R.P.No.1867 & 1868/2009 2 was sent by registered post. Ext.P6 shows that petitioner was served with the notice on 4.2.2006. Respondent No.1 gave evidence as PW1 and stated that petitioner borrowed Rs.78,500/- from him and for the discharge of that liability issued the cheque. When questioned under under Section 313 of the Code of Criminal Procedure, petitioner claimed that respondent No.1 is his relative and a trusted person, respondent No.1 used to visit his house often. The cheque in question is one of the cheques he lost from his house five years before filing of the complaint. 4. In Crl.R.P.No.1868 of 2009 arising from S.T.No.938 of 2006 of the court of learned Judicial Magistrate of First Class-I, Kottayam case of respondent No.1 is that petitioner borrowed Rupees one lakh from him and for repayment of that amount, issued Ext.P1, cheque dated 7.10.2005. That cheque on presentation was returned for insufficiency of funds as proved by Exts.P2 and P3. On getting dishonour intimation respondent No.1 issued notice to the petitioner on 31.1.2006 intimating dishonour and demanding payment of the amount. Issue and service of notice on petitioner are proved by Exts.P4 and P6. Respondent No.1 gave evidence as PW1 and testified to his case. In this case also, petitioner raised the same defence as in S.T.No.939 of 2006. On the Crl.R.P.No.1867 & 1868/2009 3 question as to the cause of dishonour of the cheques and issue and service of statutory notice, there is no dispute and the same are proved by evidence. Challenge is to the execution of the cheques. 5. Courts below were not impressed by the contention raised by the petitioner in both the cases. As regards the due execution of the cheques, respondent No.1 has given evidence as PW1 in both the cases. It is admitted that the cheques are signed by the petitioner and drawn on the account maintained by him. His contention is that he lost the cheques five years before filing of the complaint. If that be so, in the normal course he would have informed his bank about loss of cheques and issued direction for stopping payment of any amount as per those cheques. That has not happened. Moreover inspite of being served with statutory notice in both the cases, petitioner did not reply to that. The suggestion put to respondent No.1 while he was in the box that he stealthily got possession of cheques has been denied by him. Nothing was brought out to disbelieve the evidence of PW1. In these circumstances I do not find reason to interfere with the concurrent finding of the courts below as to the due execution of cheque. 6. In S.T.No.939 of 2006, learned magistrate sentenced the petitioner to undergo simple imprisonment for four months. Appellate court modified the Crl.R.P.No.1867 & 1868/2009 4 sentence as one till rising of the court and fine of Rs.78,500/- with default sentence of simple imprisonment for three months. In S.T.No.938 of 2006, learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. Appellate court modified the sentence as one till rising of the court and fine of Rupees one lakh with default sentence of simple imprisonment for three months. I do not find reason to interfere with the sentence as modified by the appellate court. 7. Learned counsel for petitioner requested that petitioner may be granted six months' time to deposit the fine in the trial court as ordered by the appellate court. It is seen from the judgment of the appellate court that petitioner has already been given three months' time to deposit the fine. However considering the circumstances stated by the learned counsel as to the difficulty of the petitioner to raise the amount immediately and considering the amount involved, I am inclined to grant three months' further time to deposit the fine in the trial court. It is made clear that the substantive sentence awarded by the appellate court or the default sentence for non-payment of fine are not interfered with. Resultantly, these revisions fail and are accordingly dismissed. Petitioner is granted three months' time from today to deposit fine in both the cases in the trial court as ordered by the appellate court. In case of default Petitioner shall Crl.R.P.No.1867 & 1868/2009 5 undergo the default sentence as ordered by the appellate court. Petitioner shall appear in the trial court on 22.9.2009 to receive the sentence. Crl.M.A.Nos. 5653 of 2009 in Crl.R.P.No.1867 of 2009 and 5654 of 2009 in Crl.R.P.No.1868 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks