IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 Crl.Rev.Pet.No. 2704 of 2009() ------------------------------ CRA.297/2007 of ADDL.SESSIONS COURT (ADHOC)-II, KASARAGOD CC.238/2006 of JUDICIAL FIRST CLASS MAGISTRATE (II) [ADDITIONAL MUNSIFF], KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- M.MOIDEEN, AGED 38 YEARS, S/O.ABBAS MUSLIAR, RESIDING AT SOORAMBAYAL LAKSHAM VEEDU COLONY, P.O.EDANAD, KUMBALA, KASARAGOD TALUK & DISTRICT. BY ADV. SRI.MURUGAN P.V. RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. JAYAPRASAD ALWA, AGED 45 YEARS, ALWA NIVAS, BELA VILLAGE AND POST, KUMBALA, KASARAGOD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2704 of 2009 -------------------------------------- Dated this the 21st day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Kasaragod in Crl.Appeal No.297 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.85,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 10.2.2005. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Notice was returned unclaimed. Issue and service of statutory notice as aforesaid are proved by Exts.P3 to P5. Respondent No.1 gave evidence as PW1 and testified to his case. According to the petitioner, he had no transaction with respondent No.1. Instead when one Suresh borrowed money from respondent No.1 his signed blank cheque was given as security. Suresh repaid the amount but respondent No.1 did not return the cheque. That cheque has been misused. Crl.R.P.No.2704/2009 2 3. It is contended in this revision that due execution of the cheque is not proved. It is not disputed that Ext.P1, cheque contained signature of petitioner and is drawn on the account maintained by the petitioner. It is also not disputed that the cheque is given to respondent No.1 though according to him as security for the loan given to the said Suresh. That suggestion has been denied by respondent No.1. There is no evidence or circumstance to think that the cheque came to the possession of respondent No.1 in the circumstances stated by the petitioner. That petitioner refused to claim the notice inspite of intimation shows that he was aware of the claim being made on behalf of respondent No.1. In the circumstances there is no reason to interfere with the finding of the courts below as to the due execution of the cheque. Petitioner has not rebutted the presumption under Section 139 of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. There was also a direction for payment of Rs.85,000/- by way of compensation to respondent No.1 and in default of payment to undergo simple imprisonment for three months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court and fine of Rs.80,000/-. Default sentence of simple imprisonment for three months was also provided Appellate court directed that fine if realized will be paid to respondent No.1 as compensation. Having regard to the nature of offence and the amount involved I find no reason to interfere with the sentence as modified by the appellate court or the default sentence at the instance of petitioner. Crl.R.P.No.2704/2009 3 5. Learned counsel requested that petitioner may be granted six months’ time to deposit fine in the trial court. Learned counsel states that petitioner is not able to raise the amount immediately due to financial difficulties. Having regard to the facts and circumstances and the amount involved, petitioner is granted time till 20.1.2010 to deposit fine in the trial court as ordered by the appellate court. Resultantly this revision petition fails. It is dismissed. Petitioner is granted time till 20.1.2010 to deposit fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 22.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks