IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.REV.PET.NO. 2574 OF 2009() ---------------------------------------------- CRA.57/2006 OF II ADDL.SESSIONS COURT, ERNAKULAM CC.545/2001 OF ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------- D.SASIDHARAN, S/O.DAMODARAN, VYSAKTHI, KOWANAL LANE, EROOR SOUTH P.O. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.SUJA MATHEW RESPONDENT(S): STATE AND COMPLAINANT ---------------------------------------------------------------- 1. ANIL VARGHESE, 5B, CHANDRA TOWERS, VYTTILA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2574 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of August, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Challenge in this revision is to the concurrent finding entered by the courts below as to the due execution of a cheque for the discharge of a legally enforceable debt/liability. Petitioner faced trial in the court of learned Additional Chief Judicial Magistrate, Ernakulam in C.C.No.545 of 2001 for offence punishable under Section 138 of the Negotiable Instruments Act. Case is that petitioner owed Rs.25,000/- to respondent No.1 and for discharge of that liability issued Ext.P1, cheque dated 8.8.1999. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Statutory notice issued to the petitioner was returned as unclaimed in spite of giving intimation. Issue and return of notice as aforesaid are proved by Exts.P3 and P4. Respondent No.1 gave evidence as P.W.1. According to the petitioner in connection with interior work at the house of respondent No.1 he received Rs.1,00,000/- on four occasions and at that time four signed blank cheques were given as security. He has CRL. R.P. No.2574 of 2009 -: 2 :- done the work spending Rs.1,25,000/-. respondent No.1 refused to return the signed blank cheques. It is contended that concurrent finding regarding execution of cheques is not correct. 3. Respondent No.1 when examined as P.W.1 denied the suggestion made on behalf of petitioner as to how the cheque happened to be in his custody. As regards the explanation of petitioner what is available is only the suggestion made on his behalf. There is no reason to disbelieve the evidence of respondent No.1. That petitioner did not accept notice in spite of intimation indicated that petitioner was aware of the claim being made on behalf of respondent No.1. Courts below have considered the evidence of respondent No.1 and found in favour of due execution of the cheque which I find no reason to interfere. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month and payment of fine of Rs.28,000/- A default sentence of imprisonment for three months was also provided. It was directed that fine if realised will be given to respondent No.1 as compensation. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Though in paragraph 10 of the judgment of the appellate court there is reference to fine of Rs.25,000/- it is seen from the operative portion of the judgment that the fine imposed is Rs.28,000/-. It is also stated in the judgment that CRL. R.P. No.2574 of 2009 -: 3 :- appellate court is not interfering with the sentence of fine imposed by learned magistrate. Hence it is clear that appellate court has confirmed the sentence of fine of Rs.28,000/-. I find no reason to interfere with the substantive sentence as modified and sentence of fine and default sentence as confirmed by the appellate court. 5. Learned counsel requested five months’ time to deposit the fine. According to learned counsel petitioner is unable to raise the amount immediately. Considering the circumstances stated by learned counsel and the amount payable as fine I am inclined to grant time till 08.01.2010 to deposit the fine of Rs.28,000/- (Rupees Twenty eight thousand only) as ordered by the appellate court. Resultantly this revision petition fails and it is dismissed. Petitioner is granted time till 08.01.2010 to deposit fine in the trial court. Petitioner shall appear in the trial court on 09.01.2010 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv