IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.Rev.Pet.No. 1741 of 2009() ------------------------------ CRA.70/2005 of ADDL. SESSIONS COURT FAST TRACT-I, TRIVANDRUM ST.3049/2004 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SIVAKUMAR, S/O.K.R.MONI, T.C. 18/6443, OPPOSITE SIDE OF SREESWAYAMPOORNA ASHRAMAM, PUNNAKKAMUGHAL, KUNNAPUZHA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. SEBASTIAN GEORGE, RESIDING AT TC.36/636, T.K.D.ROAD, PATTOM PALACE P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1741 of 2009 -------------------------------------- Dated this the 4th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and 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, Fast Track-I, Thiruvananthapuram in Crl.Appeal No.70 of 2005 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.1, petitioner borrowed Rs.1,00,000/- from him on 3.12.2003 and for the discharge of that liability issued Ext.P1, cheque dated 10.1.2004. That cheque was dishonoured for insufficiency of funds as seen from Ext.P2. On getting dishonour intimation respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment, as proved by Exts.P3 to P5. Petitioner sent Ext.P6, reply. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P6. According to the petitioner, he had borrowed only Rs.10,000/- from respondent No.1 and given a signed blank cheque. The amount borrowed was repaid in January, 2003, he got another sum of Rs.10,000/- from respondent No.1 by way of loan and issued yet another cheque. He could not repay that amount. Respondent No.1 has Crl.R.P.No.1741/2009 2 misused that cheque. Petitioner examined DW1, the income tax officer dealing with the income tax returns of respondent No.1 and proved Exts.D1 to D4. DW1, basing on Exts.D3 and D4, copy of the returns submitted by respondent no.1 during the relevant periods stated that respondent No.1 is a person having sufficient means and is assessed to income tax. It is contended by learned counsel that even the evidence of respondent No.1 as PW1 is sufficient to rebut the presumption under Section 139 of the Act. Learned counsel brought to my attention evidence of respondent No.1 as extracted in paragraph 4 of the trial court's judgment where it is stated that he got acquaintance with petitioner through one Deepak George and it was due to that intimacy with the petitioner that he was inclined to give a sum of Rs.1,00,000/- to him. That amount was raised by respondent No.1 by borrowing Rs.50,000/- from a relative of his and Rs.50,000/- which he had kept for his furniture business. Learned counsel contended that it is quite improbable that respondent No.1 with such limited acquaintance with petitioner would lent Rs.1,00,000/- to the petitioner by raising the amount in the way as stated by him as PW1. 4. It is not as if petitioner denies any sort of acquaintance with respondent No.1, it is not also that petitioner is denying any transaction with respondent No.1. Instead, it is his case that he had borrowed Rs.10,000/- on two occasions and on both occasions he had given two signed blank cheques. On the last occasion in January, 2003 he borrowed Rs.10,000/-. He stated that he had not repaid that amount. Therefore it is not as if there is no sort of acquaintance with petitioner and respondent No.1 so that, respondent No.1 Crl.R.P.No.1741/2009 3 would not have thought of lending money to the petitioner. The version attempted to be proved through DW1 and Exts.D1 to D4 is not in any way helpful to the petitioner. On the other hand it is revealed from that evidence that respondent No.1 is sufficiently affluent and capable of raising Rs.1,00,000/-. It is admitted that petitioner has handed over Ext.P1, cheque to respondent No.1 though according to him in signed blank condition. That contention is however not established. On the facts and evidence on record, courts below have correctly held in favour of due execution of the cheque and that petitioner failed to rebut the presumption under Section 139 of the Act. There is no illegality, irregularity or impropriety in the findings of courts below calling for interference in revision. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay Rs.1,00,000/- as compensation with a default sentence for one month. Appellate court confirmed the conviction as well as the direction for payment of compensation. Learned counsel submitted that the substantive sentence may be modified. 6. So far as substantive sentence awarded by the trial court as confirmed by the appellate court is concerned, considering the relationship between the parties and nature of the offence involved I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation. In case of non-payment of compensation petitioner has to undergo simple imprisonment for three months. Crl.R.P.No.1741/2009 4 7. Learned counsel requested three months' time to deposit the compensation in the trial court. Having regard to the amount involved and the circumstances stated by learned counsel, I am inclined to allow that request. 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. Petitioner is granted three months' time to deposit the compensation in the trial court for payment to respondent No.1 as ordered by the learned magistrate. In case of default, petitioner shall undergo simple imprisonment for three months. iii. Petitioner shall appear in the trial court on 7.9.2009 to receive the sentence. Crl.M.A.No.5315 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks