IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 1717 of 2009() ----------------------------------------- CRA.301/2002 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY CC.375/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------------- NCHARAKKAT VALAPPIL YOUSEFF, S/O. IMBICHI, BEEFATHU MANZIL, NEAR KOLLARAKKAL MOSQUE, PUZHATHIL, KATTAMPALLY, KANNUR DIST. BY ADV. MR.A.MOHAMED MUSTAQUE MR.T.PRAVEEN RESPONDENTS/RESPONDENTS/COMPLAINANT -------------------------------------------------------------------- 1. S. PRADEEPAN, S/O.KUNHAMBU, KOLAPPRATH HOUSE, BEHIND AZHIKODE HIGH SCHOOL, AZHIKODE, KANNUR DIST. 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1717 OF 2009 ---------------------------------------- Dated this the 2nd day of June, 2009 ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not to the prejudice of respondent No.1. 2. Heard counsel for petitioner and the Public Prosecutor. This revision is in challenge of the judgment of Additional Sessions Court (Adhoc No.1), Thalassery in Crl.Appeal No.301/2002 confirming the conviction and sentence of petitioner in a prosecution under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 claimed that petitioner borrowed Rs.39,000/- from him on 22.6.98 agreeing to re-pay the same before 22.7.1998 and issued Ext.P1, cheque dated 22.7.1998 for the discharge of that liability. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. On getting intimation regarding dishonour, respondent No.1 issued notice to the petitioner intimating dishonour and demanding Crl.R.P.No.1717/09 2 payment of the amount. Issue and service of notice are not disputed and proved by Exts.P3 to P5. Ext.P6 is the reply. Petitioner contended that he had borrowed only Rs.5,000/- from respondent No.1 in April 1998 and issued two signed blank cheques, one of which has been misused. Respondent No.1 gave evidence as PW1 when questioned under Section 313 of Code of Criminal Procedure, petitioner advanced a contention that he had paid the entire amount due to respondent No.1. Learned magistrate found that there is no reason to disbelieve evidence of Respondent No.1. Appellate Court confirmed the findings. 2. It is not in dispute and proved by respondent No.1 that Ext.P1 contained the signature of petitioner. Petitioner also admits that he handed over the cheque to Respondent No.1 though according to him in April, 1998 as security for the loan of Rs.5,000/- . That contention is not proved or probabilised by the petitioner. Mere fact that petitioner has sent a reply in that way is not sufficient to disbelieve the evidence of respondent No.1 regarding the transaction and execution of the cheque. Nothing is brought on record to Crl.R.P.No.1717/09 3 disbelieve the evidence of respondent No.1. On the facts and evidence, courts below found in favour of execution of cheque and that petitioner failed to rebut the presumption under Section 139 of the Act. I do not find any reason to interfere with that finding. 3. So far as the sentence is concerned, learned magistrate directed petitioner to undergo imprisonment for three months. Appellate Court did not interfere. Learned counsel submits that sentence is excessive. 4. Considering the object of legislation and the nature of the offence, I am inclined to think that Simple Imprisonment till rising of the court and fine of Rs.42,000/- will be sufficient in the ends of justice. Out of the fine if realized, Rs.40,000/- will be given to respondent No.1 as compensation under Section 357(1) of the Code of Criminal Procedure. Resultantly, this revision is allowed in part in the following lines. i) Sentence awarded to the petitioner is modified as Simple Imprisonment till rising of the court and payment of fine of Rs.42,000/- (Rupees forty two Crl.R.P.No.1717/09 4 thousand only)and in case of default, to undergo Simple Imprisonment for three months. ii) Petitioner is granted two months’ time to deposit the fine in the trial court. Amount if any, deposited by the petitioner in any of the courts below will be adjusted towards fine ordered to be paid hereby. iii) Out of the fine realized, Rs.40,000/- (Rupees forty thousand only)will be given to respondent No.1 as compensation under Section 357(1) of the Code of Criminal Procedure. iv) Petitioner shall appear in the trial court on 5.8.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1717/09 5