IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.Rev.Pet.No. 2120 of 2009() ------------------------------ CRA.573/2007 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.445/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MUVATTUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED. -------------------------------------------------------- SHAJAN P.VINCENT, AGED 34 YEARS, S/O.VINCENT, RESIDING AT POOZHIYIL HOUSE, POONJARKANDAM ADIMALI P.O., IDUKKI. BY ADV. SRI.A.T.ANILKUMAR SRI.P.DALBI EMMANUEL RESPONDENT(S): RESPONDENTS/COMPLAINANT. --------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JIMMY GEORGE, AGED 31 YEARS, S/O.VARKEY, RESIDING AT KARICKANAL HOUSE, KOTHANALLOOR VILLAGE, VAIKOM TALUK, AND NOW RESIDING AT KUDILIL BUILDINGS, NEAR BAZAR, PIRAVOM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2120 of 2009 -------------------------------------- Dated this the 2nd day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-I), Ernakulam in Crl.Appeal No.573 of 2007 confirming conviction but modifying sentence imposed on petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) as one of fine. Respondent No.2 filed a private complaint alleging that petitioner borrowed Rs.70,000/- from him and on demanding repayment issued Ext.P1, cheque dated 24.9.2004 for repayment of that amount. That cheque on presentation was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.2 issued statutory notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice on petitioner are proved by Exts.P4 to P6. Finding of the courts below regarding cause of dishonour and issue and service of notice are not challenged in this revision. Contest is regarding the execution of the cheque. Petitioner contends that he had not issued any cheque in favour of respondent No.2. 3. Regarding the transaction which led to the execution of the Crl.R.P.No.2120/2009 2 cheque respondent No.2 has given evidence. It is seen that petitioner did not dispute his signature in Ext.P1. He only contended that he had given the cheque as security to some other person. He however did not explain how that cheque happened to be in the custody of respondent No.2. Respondent No.2 denied the suggestion that the cheque was not issued to him. Petitioner did not adduce any evidence or bring out any circumstance to prove or probabilise his contention. He did not also reply to the notice served on him. Nothing is brought out to disbelieve the evidence of respondent No.2. It is in the above circumstances that courts below found in favour of due execution of the cheque. I do not find any illegality, irregularity or impropriety in the judgments under challenging requiring interference with the finding regarding execution of the cheque. Petitioner was not able to rebut the presumption under Section 139 of the Act and hence his conviction and sentence are legal and proper and required no interference. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. He was directed to pay Rs.70,000/- as compensation to respondent No.2. In case of failure to deposit compensation, sentence of simple imprisonment for two months was also provided. Appellate court modified the sentence as fine of Rs.70,000/- and in default of payment, to undergo simple imprisonment for one month. It was directed that fine if realized will be paid to respondent No.2 as compensation. Having regard to the nature of offence and the amount involved there is no reason to interfere with the sentence as modified by the appellate court. Crl.R.P.No.2120/2009 3 5. Learned counsel submits that petitioner is in financially difficult situation, unable to raise money immediately and requested three months’ to deposit fine. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to allow the request for time. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted three months’ time from today to deposit fine in the trial court as ordered by the appellate court and in default of payment, he shall undergo imprisonment as ordered by the appellate court. Petitioner shall appear in the trial court on 5.10.2009 to receive the default sentence. Crl.M.A.No.6438 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks