IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Crl.Rev.Pet.No. 2333 of 2009() ------------------------------ CRA.516/2007 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.3046/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- R.SUBHADRA, W/O.BHAGYAKUMAR, 9/595, SYAMALA BHAVAN, N.S.S.COLLEGE ROAD, AKATHETHARA, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS/RESPONDENTS/ COMPLAINANT AND STATE: ------------------------------------ 1. K.KAMARUDHEEN, S/O.KHADER SHAW RAWTHER, NAFIA MANZIL, TAGORE NAGAR, MANALI ROAD, KALMANDAPAM, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2333 of 2009 --------------------------------------- Dated this 24th day of July 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 him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Adhoc-1, Palakkad in criminal appeal No.516 of 2007 confirming conviction of petitioner but modifying the sentence for offence punishable under section 138 of the Negotiable Instruments Act. Petitioner faced trial on a complaint preferred by respondent No.1. He alleged that petitioner borrowed Rs.200000/- from him and for repayment of that amount issued Ext.P1, cheque dated 13-02- 2004. Its dishonour for insufficiency of funds is proved by Ext.P2. It is not disputed that petitioner was served with statutory notice. Ext.P3 is the office copy of the notice. Ext.P4 is the reply. Petitioner has a contention that respondent No.1 did not produce the acknowledgment card to show that notice was served on petitioner and hence it cannot be said there is proper service of notice. This contention in my view cannot stand since Ext.P4, reply signed on behalf of petitioner admits that notice on behalf of respondent No.1 was served on her. 3. As regards transaction and execution of the cheque Crl.R.P.No.2333 of 2009 2 respondent No.1 gave evidence as PW1. Case of petitioner is that she had no transaction with respondent No.1 and instead, her son had some transaction with respondent No.1. The son handed over the signed blank cheque to respondent No.1. To disprove the evidence of respondent No.1 regarding execution of the cheque petitioner examined manager of the drawee bank as DW1. According to respondent No.1 (PW1), the cheque was issued to him on 13-02-2004 at about 1 p.m and he presented the cheque the same day for encashment. The stand of DW1, manager of drawee bank is that only those cheques presented before 11.15 a.m will be send for clearance the same day. In this case cheque was presented for encashment on 13-02-2004. Going by the version of DW1, it should have been presented for encashment before 11.05a.m that day. It is therefore contended by learned counsel that version of respondent No.1 that cheque was given to him on 13-02-2004 at 1p.m cannot be accepted. 4. It is true that DW1 stated so, but he did not produce any rule or other standing order to show that cheques presented after 11.15a.m will not be taken up for encashment the same day on any circumstance whatsoever. At any rate what could be said is that version of respondent No.1 that the cheque was given to him at 1p.m on 13-02-2004 is not correct. That by itself is not sufficient to discard his evidence if it is otherwise acceptable. Petitioner does not dispute Crl.R.P.No.2333 of 2009 3 that Ext.P1 contained her signature and it was drawn on the account maintained by her. According to her, her son handed over the signed blank cheque to respondent No.1 but, the son is not examined. There is also no evidence to show that respondent No.1 had any transaction with the son of petitioner. Courts below found that there is no reason to disbelieve the evidence of respondent No.1 as PW1. That finding being based on an appreciation of the evidence, and so far as it is not shown to be illegal, irregular or improper interference in revision is not called for. Petitioner has not rebutted the presumption under section 139 of the Act. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to deposit in the trial court compensation of Rs.300000/- for payment to respondent No.1. Default sentence of imprisonment for three months was also provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court while confirming the direction for compensation and the default sentence. Having regard to the nature of offence and the amount involved there is no reason to interfere with the sentence as modified and the direction for payment of compensation or default sentence as confirmed by the appellate court. 6. Counsel for petitioner requested that petitioner may be granted six months' time to deposit compensation. According to the Crl.R.P.No.2333 of 2009 4 learned counsel, petitioner is placed in a financially difficult situation. Considering the circumstances stated by learned counsel petitioner is granted time till 30-12-09 to deposit compensation. Resultantly this revision fails. It is dismissed. Petitioner is granted time till 30-12-2009 to deposit the compensation. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. Petitioner shall appear in the trial court on 31-12-2009 to receive the sentence. Execution of warrant if any against the petitioner shall remain in abeyance till 31-12-2009. Sd/- THOMAS P JOSEPH, JUDGE Sbna/ The figure “Rs.300000/-” occurring in the 3rd line of paragraph 5 (page 3) of order dated 24-07-2009 in Crl.R.P.No.2333/2009 is corrected and substituted as “Rs.2,00,000/-” as per order dated 04/11/2009 in Crl.M.A.10596/2009. Sd/- Registrar (Judicial)