IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 2156 of 2009 ------------------------------ CRA.603/2007 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD CC.213/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------------------------------- S.RAJANIKANTH, S/O. JADADEESWARAN, H.NO.22/69, K.V.K.NILAYAM, KUNNATHURMEDU, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENTS: RESPONDENT NO.1/COMPLAINANT --------------------------------------------------------------------------- 1. K.RAMACHANDRAN, MANAGER, REP.BY SABARI FINANCE, R.S.NAIDU BUILDING, KUNNATHURMEDU, PALAKKAD. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/07/2009 , THE COURT ON 06/07/2009 PASSED THE FOLLOWING: app/- THOMAS. P. JOSEPH, J ================ Crl.R.P.No.2156/2009 ================ Dated this the 6th day of July 2009. O R D E R ======= Notice to respondent No.1 is dispersed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner faced trial in the Court of learned Judicial Magistrate of First Class II, Palakkad in CC.No.213/2006 for offence punishable under section 138 of Negotiable Instrument Act (for short, “the Act”). Case arose on a compliant preferred by respondent No.1, Manager of the company. His case is that petitioner borrowed Rs.1,35,000/- from that company undertaking to repay the same with interest at the rate of 18% per annum and for the sum of Rs.1,45,000/- due, petitioner issued Crl.R.P.No.2156/2009 2 Ext.P1, cheque dated 12.4.2006. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. On getting dishonour intimation, respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice are proved by Ext.P4 series. There is no challenge to the finding of the courts below regarding cause of dishonour or, issue and service of statutory notice on the petitioner. Respondent No.1 gave evidence as PW1 and spoke to his case. He claimed that petitioner borrowed the amount undertaking to repay the same with interest and for the amount payable issued the cheque (Ext.P1). When questioned under section 313 of Code of Criminal Procedure (for short, “the Code”), petitioner claimed that he had given the cheque to another person as a security. But, when PW1 was in his box, it was suggested to him on behalf of the petitioner that he had borrowed Rs.25,000/- (from respondent No.1) and the cheque was given as security and Crl.R.P.No.2156/2009 3 that amount was repaid. Petitioner did not produce any evidence in support of the contention. Learned magistrate observed that case pleaded by petitioner when questioned under section 313 of the Code differed from his suggestion to PW1 in cross examination. Though as an accused, petitioner is entitled to take up any defense including inconsistent pleas, that his pleas are inconsistent is certainly a matter relevant in appreciating the evidence. PW1 has given evidence as to the transaction and due execution of the cheque. Going by the suggestions in the cross examination of PW1, petitioner is not disputing transaction with respondent No.1 or that he had handed over the cheque to respondent No.1 in connection with that transaction. His contention is only regarding the amount borrowed and its repayment. There is no evidence to show that petitioner has repaid any amount to respondent No.1 or that the amount borrowed was only Rs.25,000/-. Petitioner did not reply to the statutory notice served on him. Nothing Crl.R.P.No.2156/2009 4 is brought out to disbelieve evidence of PW1. In the circumstances, there is little reason to interfere with the evidence entered by the courts below regarding due to the execution of the cheque (Ext.P1). Petitioner has failed to rebut the presumption under section 139 of the Act. Conviction required no interference. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for 6 months and directed payment of compensation of Rs.1,40,000/-. There was also a default sentence of imprisonment for two months. Learned Addl. Sessions Judge modified the sentence as fine of Rs.1,40,000/- with default sentence of imprisonment for three months. It was directed that fine if realized will be given to respondent No.1 as compensation. I do not find reason to interfere with the sentence as modified by the Appellate Court or the default sentence provided. 5. Learned counsel requested that petitioner may be granted five months time to deposit the fine in the trial Crl.R.P.No.2156/2009 5 court. Learned counsel stated that on account of financial difficulties petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by the learned counsel and considering the amount involved, I am inclined to grant four months' time to the petitioner to deposit the fine in the trial court as ordered by the Appellate Court. In case of failure he has to undergo default sentence as ordered by the Appellate court. Resultantly, this revision failed and it is accordingly dismissed. Petitioner is granted four (4) months' time from today to deposit the fine in the trial court as ordered by the Appellate court. Petitioner shall appear in the trial court on 9.11.2009 in case he failed to deposit the amount in the trial court within the aforesaid time. THOMAS. P. JOSEPH, JUDGE app/-