IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 CRL.REV.PET.NO. 1596 OF 2009() ------------------------------------------------- CRA.648/2006 OF II ADDL. SESSIONS COURT, TRIVANDRUM ST.2/2006 OF JUDICIAL FIRST CLASS MAGISTRATE-II, VARKALA .................... REVN. PETITIONER(S) -APPELLANT - ACCUSED: --------------------------------------------------------------- SHENIMOL, D/O. MOHAMMED IBRAHIM, PARAKKUDI VEEDU, ODAYAM, VARKALA, BY ADV. SRI.M.RAJAGOPALAN NAIR RESPONDENT(S) - RESPONDENTS - COMPLAINANT: ------------------------------------------------------------------ 1. ANILKUMAR, S/O. GANAPATHY ACHARI, LEKSHMI BHAVAN, MANTHARA DESOM, EDAVA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1596 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of May, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this case. 2. Challenge in this revision is to the conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Trial court convicted and sentenced the petitioner to undergo simple imprisonment for one year. She was directed to pay compensation of Rs.1,00,000/- to respondent No.1 and in default to undergo simple imprisonment for three months. Learned Additional Sessions Judge, Thiruvananthapuram while confirming the conviction modified the sentence to simple imprisonment till the rising of court. Compensation ordered by the trial court was converted as fine with a direction that on payment of fine the same shall be released to respondent No.1 under Section 357 (1) (b) of the Code of Criminal Procedure Code (for short, “the Code”). It is contended by counsel for petitioner that due execution of the cheque is not proved. 3. Case of respondent No.1 is that petitioner borrowed CRL. R.P.1596 of 2009 -: 2 :- Rs.1,00,000/- from him on 1.8.2003 undertaking to repay the same within one month and issued Ext.P1, cheque dated 1.9.2003. That, on presentation the cheque was dishonoured for insufficiency of funds is proved by Ext.P2. Petitioner was informed of the dishonour of cheque and she was called upon to make payment as per the cheque. Issue and service of notice are proved by Exts.P3 to P5. These facts are not under challenge. Contention is only regarding execution of cheque. Respondent No.1 examined himself as P.W.1 and testified to his case. He claimed that petitioner executed the cheque in his favour for the discharge of the debt. Contention of petitioner is that cheque was not drawn on her account and that she has neither written nor signed the cheque. It was contended by counsel for petitioner that the cheque was not send for expert opinion. 4. It is seen from the file produced by the petitioner and from the judgments under challenge that when questioned under Sec.313 of the Code petitioner raised a contention that cheque was not drawn on her account. Thereafter petitioner filed C.M.P. No.150 of 2006 to send the cheque for expert opinion. Learned Magistrate as per a detailed order dated 7.2.2006 dismissed that petition. It is not disputed that C.R.P. No.586 of 2006 filed by the petitioner in this Court in challenge of that order was also dismissed. Learned Magistrate observed that in the light of the dismissal of C.R.P. No.586 of 2006 petitioner cannot CRL. R.P.1596 of 2009 -: 3 :- contend that the cheque ought to have sent for expert opinion. It is pertinent to note that it is only when questioned under Sec.313 of the Code that the petitioner raised a contention that cheque was not drawn on her account. It is also pertinent to note from Ext.P2 that dishonour of the cheque was only due to insufficiency of funds. Petitioner has not send any reply to the notice served on her. Another contention raised is that the cheque was issued by her mother in connection with some gold transaction. There is no evidence or circumstance in the case to come to such a conclusion. I stated that the dishonour of the cheque was not for the reason of signature of petitioner differing but only due to insufficiency of funds. 5. Yet another contention raised is that going by the version of P.W.1, petitioner was indebted to him for Rs.50,000/- when he is stated to have advanced Rs.1,00,000/-. According to the petitioner it was not probable that in such a situation a further sum of Rs.1,00,000/- was advanced. Evidence of respondent No.1 is that petitioner at a time when Rs.50,000/- was due to him approached him and stated that she is arranging for disposal of her property to discharge the liability and obtained a further of Rs.1,00,000/- on execution of the cheque. Learned Magistrate found that the explanation given by P.W.1 is probable and acceptable. That, cheque is issued by the petitioner is proved by the evidence of P.W.1. CRL. R.P.1596 of 2009 -: 4 :- Respondent No.1 is therefore entitled to rely on the presumption under Sec.139 of the Act. That presumption has not been rebutted by the petitioner. 6. So far as the sentence is concerned, it has been modified by the learned Additional Sessions Judge to simple imprisonment till rising of the court which is reasonable. Compensation awarded by the trial court was converted as fine. In the facts and circumstances of the case I am inclined to restore the direction issued by the trial court for payment of compensation. 7. At this stage learned counsel for petitioner requested for four months' time to deposit the amount. Considering the facts and circumstances of the case and also taking note of the fact that the cheque is dated 1.9.2003, I am inclined to think that two months' time is sufficient. Resultantly this Crl. revision petition is allowed in part in the following lines: (i) Instead of fine petitioner shall deposit Rs.1,00,000/- (Rupees One lakh only) as compensation for payment to respondent No.1 in the trial court under Sec.357(3) of the Code. (ii) Petitioner is granted two months' time from this day to deposit the amount in the CRL. R.P.1596 of 2009 -: 5 :- trial court, failing which he shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) if the petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period two months. (iv) Petitioner shall surrender in the trial court on 27.7.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv