IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 CRL.REV.PET.NO. 2073 OF 2009() ------------------------------------------- CRA.211/2007 OF II ADDL. SESSIONS COURT, TRIVANDRUM ST.641/2006 OF JUDICIAL FIRST CLASS MAGISTRATE, VARKALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- SAWAD, S/O.SUBAIR, PUTHEN VEEDU, ARIVALAM, RATHICKAL DESOM, VETTOOR VILLAGE. BY ADV. SRI.G.SUDHEER RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. MUSAMMIL, ULLUVILAKOM VEEDU, ARIVALAM, RATHICKAL DESOM, VETTOOR VILLAGE. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2073 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of July, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge, Thiruvananthapuram in Crl.Appeal No.211 of 2007 confirming conviction of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act but modifying sentence. 2. Respondent No.1 preferred a private complaint. He alleged that petitioner borrowed Rs.1,25,000/- from him and for repayment of that debt issued Ext.P1, cheque dated 5.10.2005. That cheque was dishonoured for insufficiency of funds. Dishonour of the cheques for reason stated above is proved by Exts.P2 and P6. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Issue and service of notice are proved by Exts.P3 to P5. Respondent No.1 gave evidence as P.W.1 and stated that petitioner borrowed Rs.1,25,000/- from him and for repayment of that amount issued the cheque. According to the petitioner he had borrowed only Rs.25,000/- and by way of interest he has paid Rs.27,500/-. It is his further contention that the cheque (Ext.P1) was taken from him by force. Courts below found in favour of due execution of the cheque. That finding is in challenge in this revision. CRL. R.P. No.2073 of 2009 -: 2 :- It is contended by learned counsel that finding of the courts below is not correct. 3. Petitioner does not dispute that he had borrowed money from respondent No.1 though according to him the amount borrowed was only Rs.25,000/-. It is also his case that by way of interest he has already paid Rs.27,500/-. But on these e contentions what is available is only the suggestion to respondent No.1 when the latter was in the box. He denied that suggestion. So far as execution of the cheque is concerned contention of petitioner is that respondent No.1 took it by of force but he did not explain how respondent No.1 took the cheque by force. Petitioner has no case that he had preferred any complaint to any authority about respondent No.1 taking the cheque by force. Nor did he inform his bank about such an incident and request for stoppage of payment as per that cheque. At least when petitioner was served with the notice he could have replied to respondent No.1 taking up that contention. That also was not done. There is no material on record to show that respondent No.1 got custody of the cheque in the circumstances stated by petitioner. There is nothing to disbelieve the evidence of respondent No.1. In these circumstances courts below are justified in holding in favour of due execution of the cheque. Petitioner has not rebutted the presumption under Sec.139 CRL. R.P. No.2073 of 2009 -: 3 :- of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for one year and directed him to pay Rs.1,25,000/- as compensation. In default of payment sentence of simple imprisonment for three months also was awarded. Appellate court modified the substantive sentence as simple imprisonment for three months. Direction for payment of compensation was converted as fine of Rs.1,25,000/-. Default sentence of three months was also provided. 5. Counsel for petitioner contended that the sentence awarded is excessive. Counsel requested six months’ time to deposit the fine in the trial court. compensation. Counsel submits that petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by counsel for petitioner I am inclined to grant three months’ time to petitioner to deposit fine in the trial court. So far as sentence is concerned I am inclined to think that simple imprisonment till rising of the court will be sufficient in the ends of justice. Resultantly, this revision is allowed in the to the following extent: (i) Substantive sentence is modified as simple imprisonment till rising of the court. CRL. R.P. No.2073 of 2009 -: 4 :- (ii) Fine awarded by the appellate court and default sentence as ordered by that court are retained. (iii) Petitioner is granted four months’ time from this day to deposit the fine in the trial court. Petitioner shall appear in the trial court on 3.11.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv