IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 CRL.REV.PET.NO. 1663 OF 2009() --------------------------------------------- CRA.318/2008 OF ADDL.SESSIONS COURT (ADHOC), KOTTAYAM ST.1172/2006 OF JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ KURIAN V.JACOB, VANDANATTU VAYALIL HOUSE, PULICKAL KAVALA P.O., 14TH MILE, KOTTAYAM. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): COMPLAINANT & STATE ----------------------------------------------------------- 1. C.S.COMPANY (CONSTRUCTION LTD), T.B.ROAD, KOTTAYAM, REP. BY ITS MANAGING DIRECTOR, JAYAMATHA PRASAD @ REGHU, C.S.SADHANAM, T.B.ROAD, KOTTAYAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ALONG WITH CRL. R.P. NO.1664 OF 2009 ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NOS.1653 & 1664 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of May, 2009 O R D E R -------------- Since the courts below disposed of the cases by a common order/judgment I am disposing of these revisions by a common order. Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed in view of the order I am proposing to pass in these revisions which is not prejudicial to respondent No1. 2. Respondent No.1 which is engaged in construction of buildings claimed that petitioner and his wife, accused No.2 engaged respondent No.1 for construction of their residential building as per Ext.P7, agreement (produced and marked in S.T. No.1217 of 2006) and in part payment of the amount due to it issued the cheques in question. Those cheques were dishonoured for insufficiency of funds and in spite of statutory notice served on the petitioner and accused No.2, they did not pay the amount and thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). P.W.1 gave evidence on behalf of respondent No.1. In S.T. No.1172 of 2006 Exts.P1 to P13 were marked whereas in S.T. No.1217 of 2006 Exts.P1 to P7 were marked. Contention raised by CRL. R.P. Nos.1663 & 1664 of 2009 -: 2 :- the petitioner is that no such agreement was executed and no such amount was due. Instead, cheques were given as security in connection with the business. Learned magistrate found that accused No.2 is not liable and acquitted her of the charge. Petitioner was found guilty, convicted and sentenced to undergo simple imprisonment for six months. In appeal substantive sentence was modified as simple imprisonment till rising of the court. He was directed to pay compensation in both the cases. Default sentence was also provided in both the cases. That common judgment of the appellate court is under challenge in these revisions at the instance of the petitioner. Counsel for petitioner contended that due execution of the cheques is not proved and that at any rate presumption under Sect.139 of the Act is rebutted. 3. Though petitioner denied that there was any agreement between him and respondent No.1 for construction of residential building for the petitioner, that there was such an agreement is proved by the evidence of P.W.1 and Ext.P7 marked in S.T. No.1217 of 2006. Courts below accepted Ext.P7 and the evidence of P.W.1 to hold that in connection with the building contract, petitioner issued the cheques in question. Nothing is brought out to disbelieve the CRL. R.P. Nos.1663 & 1664 of 2009 -: 3 :- evidence of P.W.1. It is admitted by the petitioner that the cheques signed by him as the drawer were handed over to respondent No.1. Petitioner did not adduce any evidence to prove his defence. There is no reason to think that blank cheques were given as security. Petitioner did not also reply to the notice served on him. Petitioner was not able to rebut the presumption under Sec.139 of the Act. There is also evidence to show that the cheques were dishonoured for insufficiency of funds and in spite of service of notice intimating dishonour and demanding payment petitioner did not pay the amount. Conviction of the petitioner is unassailable. Sentence as modified by the appellate court and the direction for payment of compensation also require no interference, considering the nature of the offence and object of legislation. 4. Learned counsel for petitioner requested three months' time to deposit the compensation. Considering the amount involved and also the circumstances stated by the counsel, I am inclined to grant three months' time to the petitioner to deposit the compensation in the trial court. Resultantly, revisions fail and are dismissed. Petitioner is granted three months' time from this day to deposit the compensation CRL. R.P. Nos.1663 & 1664 of 2009 -: 4 :- awarded by the appellate court, in the trial court. Petitioner shall appear in the trial court on 7.9.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv