IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.Rev.Pet.No. 1198 of 2009() ------------------------------ CRA.703/2007 of ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE. ST.90/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- K.MURALEEDHARAN, S/O.KUTTY, PULIMOOTTIL HOUSE, MEZHUVDELI P.O. CHENGANNUR, DISTRICT PATHANAMTHITTA. BY ADV. SRI.C.S.MANU RESPONDENT(S)/RESPONDENTS/STATE AND COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.MANOJ, S/O.GOPALAN PALASSERY, 'JISHA NIVAS', CHERUKAVU P.O., IKKARAPPADI, DISTRICT MALAPPURAM. ADV. SRI.V.V.SURENDRAN FOR R2 SRI.P.A.HARISH FOR R2 PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1198 of 2009 -------------------------------------- Dated this the 26th day of May, 2009. ORDER Respondent No.2 appears through counsel. Public Prosecutor takes notice for respondent No.1. 2. Heard both sides. 3. Revision is in challenge of the judgment of learned Additional Sessions Judge, Fast Track (Adhoc-II), Kozhikode in Crl.Appeal No.703 of 2007 confirming conviction and sentence of petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 4. Case of respondent No.2 is that petitioner borrowed Rs.60,000/- from him on 16.7.2004 undertaking to repay the same within two months and for discharge of that liability issued Ext.P1, cheque dated 1.11.2004. That cheque on presentation was dishonoured for insufficiency of funds as proved by Ext.P2, memo. Statutory notice was issued to the petitioner on 23.11.2004 and served on him on 1.12.2004 as proved by Exts.P3 to P5 but, petitioner did not pay the amount. Respondent No.2 gave evidence in that line as PW1. Contention raised by the petitioner is that he borrowed only Rs.30,000/- from respondent No.2 and at that time, respondent No.2 obtained from him a cheque for Rs.60,000/- without date. He repaid the said amount with interest but respondent No.2 refused to return the cheque. It is contended by learned Crl.R.P.No.1198/2009 2 counsel that petitioner had actually taken a loan of only Rs.30,000/- and that the said amount with interest was paid. But, in that regard what is available is only the suggestion of the petitioner to PW1 which he denied. Petitioner did not even reply to the statutory notice served on him. Petitioner was not able to prove or probabilise the plea he raised. Nothing is brought out to disbelieve the evidence of PW1. Even according to the petitioner, he had issued the cheque for Rs.60,000/- which according to him did not bear a date. There is nothing to show that the loan taken was only Rs.30,000/-. Courts below considered the evidence and found that petitioner issued the cheque for the discharge of legally enforceable liability and that he failed to rebut the presumption under Section 139 of the Act. There is little reason to interfere. 5. Trial court sentenced the petitioner to pay fine of Rs.60,000/-. Sentence was confirmed in appeal. There is little reason to interfere with the sentence part of the judgment, as well. 6. Learned counsel for petitioner submits that Rs.12,000/- has been deposited in the appellate court as condition for grant of bail. Counsel requested that petitioner may be given two months time to deposit the fine. Considering the circumstances stated by the learned counsel, I am inclined to grant two months time to deposit the fine. Resultantly, this revision petition is disposed of in the following lines: Crl.R.P.No.1198/2009 3 i. Petitioner is granted two months’ time to deposit the fine in the trial court. ii. The amount if any, deposited by the petitioner in the appellate court shall be adjusted in the fine ordered to be paid by the petitioner. iii. In case of non-payment of the fine within the aforesaid time, petitioner shall undergo simple imprisonment for three months. iv. In case petitioner defaults to pay fine as aforesaid, he shall appear in the trial court on on 28.7.2009. v. Fine if realised shall be paid to respondent No.2 as compensation under Section 357 (1) of the Code of Criminal Procedure. Crl.M.A.No.3571 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks